UPDATE June 2013 — There have been developments on this. See this post:
Is this what we want? Internet ‘take down’ and indefinite gagging orders?
The decision in a recent court case involving allegations of harassment by blog post is instructive on all sorts of levels for what it tell us about the state of internet comment and criticism.
Let’s quickly outline what happened:
Auckland District Court Judge David Harvey was asked by Ms Brown and Madeleine Flannagan to grant restraining orders under the Harassment Act on Auckland blogger Jacqueline Sperling.
Effectively, the plaintiffs Brown and Flannagan were seeking to gag a blogger.
Judge Harvey is no innocent neophyte when it comes to these important matters: the boundaries between criticism, derogatory statements, defamation, public information and free speech. I’ve quoted him before here on The Paepae in discussion about blogger Cameron Slater’s convictions for breaching name suppression orders via blog. In that respect, I regard his opinions seriously from an intellectual point of view, not just a legal standpoint.
As he points out in his judgement, the application came from two bloggers well familiar with the cut-and-thrust and tone of debate in the blogosphere and the greatly-reduced privacy of people who choose to be part of that ‘community’: Ms Brown and Madeleine Flannagan.
In their affidavits to the court they claimed ‘distress’ at reading what another blogger/ex-friend wrote about them on her blog. They claimed it amounted to harassment. Judge Harvey agreed that the statements and “the combative and aggressively critical tone of her [Ms Sperling’s] blogs” were likely offensive, even meeting the criteria of ‘specified acts’ in terms of the Harassment Act (I might be seen as guilty of that myself, btw), and crucially found:
“But the static or passive blog post cannot, in my view be causative of distress and it cannot be said to be so if a person accesses the material by their own act of choice. By that act that person has taken the communication flow out of the control of the blogger and has assumed control of it.” [230]
So, while Brown-Flannagan may have been distressed (or not, see below) he showed that for the most part, the plaintiffs themselves navigated to the blog to read it (except in the case of a link to her blog post being sent to Mrs Flannagan’s employer)1. So, as I read the judgement, the ‘instrusive’ and ‘causative’ tests required for the comments to be actionable under the Harassment Act were not met.
Judge Harvey told the plaintiffs they had contributed to their own distress and, effectively, that they should stop reading nasty things written about them if doing so upset them so much.
He said Ms Brown couldn’t complain about photos already published on the internet being used, nor about being ‘talked about’: “…there may have been distress it was not directly caused by the posts of Ms Sperling but flowed from Ms Brown’s own engagement with the Internet and particularly the blogosphere.” [239]
Mrs Flannagan likewise, wasn’t seen by Judge Harvey as a babe in the woods:
“Ms Flanagan is also a denizen of the Internet space and an active one too. She has a “real world” profile as well and has involved herself in matters of controversy – such as the abortion debate. She, like Ms Brown, is well aware of the robust nature of communication within the Blogosphere and has little hesitation in participating in debate, contributing to comments and actively engaging in discussion. [241]
… Ms Flannagan, like Ms Brown, engaged and was prepared to enter the lists with Ms Sperling. In view of her awareness of the, at times heated, nature of the debate I consider that a reasonable person may well conclude that she might get burned. In addition she made unprompted visits to Ms Sperling’s website and in that regard could be said to have contributed to her own distress, if indeed there was any.” [242] emphasis added
In other words, they had to expect some harsh comment. Get over it.
I’ve observed enough court hearings and read enough decisions to recognize the judge’s code words ‘there may have been distress’ (Brown) and ‘[Flannagan] contributed to her own distress, if indeed there was any‘ remarks for what they are: pointers that he kinda-sorta found Ms Brown’s and Mrs Flannagan’s claims of ‘distress’ implausible.
The result: Judge Harvey dismissed their application for restraining orders, saying very clearly that while the comments on the defendant’s blog may have been offensive, insulting and even qualified as ‘specified acts’ as far as the Harassment Act was concerned, in all but one incident, they couldn’t be seen as ‘causative’ of any ‘distress’ because the plaintiffs effectively sought the comments out.
That is an important distinction, and as a blogger who is on occasion, harshly critical of other people — by name — myself, I’m grateful that Brown-Flannagan took their (flawed and failed) court action which sees that issue clarified like this.
But it’s too bad Jacqueline Sperling had to pay the emotional price for this. The ghastly smears directed at her by team Brown-Flannagan sock puppets and anonymous proxies are disgusting. The Christianity which is claimed to be a common inspiration of the participants in this melodrama is not making much of an impact from where I sit. An anonymous blogger supposedly defending Madeleine Flannagan is peddling very nasty stuff in attempts to discredit Ms Sperling. I guess he’ll be at church on Sunday. He may not realize he’s not actually doing Flannagan’s reputation any favours.
The case failed before even reaching the hurdle of the NZ Bill of Rights Act ‘freedom of expression’ clauses, although Judge Harvey, as one would expect, touches on those — emphasizing the obvious truth that freedom of expression is only a challenge if you disagree with what’s being expressed. As I sometimes do.
Engaging
The ‘engaging in debate’ aspect was also, as I read it, an important factor. (Truthfully, I actually think better of people who are willing to engage, and put their side of an argument … but I’m intolerant of abuse, especially by dishonest anonymous sock puppets. We’ve discussed that a lot here. (For instance see ‘Potshots from behind a mask of anonymity are, by definition, cheap‘)
As already noted, Judge Harvey’s decision records Ms Brown and Mrs Flannagan ‘engaged’ in online debate — in Ms Brown’s case he described her contributions as ‘aggressive and hostile’, in Mrs Flannagan’s ‘robust’ with, as noted, a reasonable expectation she could get ‘burned’, saying “In my view a reasonable person in [Mrs Flanagan’s] circumstances would not be distressed by the posts, with one exception.” [243]
The Flannagan-Brown argument, as he shows, falters on the claim that the blogged comments ’cause’ distress (if any) because the ‘victim’ has to go and read them. In that respect he showed the court action was pretty much a legal goof — action taken under the wrong Act. (A clumsy mistake for a lawyer?) —
Update: I could be wrong about this, but from discussions I’ve had about the matter, it seems to me the Harassment Act was/is intended to give people the same sort of ‘protection’ from distress-inducing intrusive behaviour as the Family Law protections … you know, non-molestation, restraint etc. but from non-family or ex-Spouse-type people. In that respect, I can now see why Mrs Flannagan took her action under that Act, and withdraw my ignorant comment about it being a ‘legal goof’. (No-one has asked me to withdraw any comments.) – P
Defamation?
Judge Harvey spells out the Brown-Flannagan misapprehension:
Another matter that is common to both applicants is their concern about the way that they may be perceived by others who may read Ms Sperling’s posts. That, in my view, points not to distress but to reputation and there are other areas of the law apart from the Harassment Act that deal with that. [244]
It’s not enough to claim distress. That failed. If they felt the blogger defamed them, that’s a different legal ‘equation’ … and by no means a safe bet. We’ve discussed the challenges proving ‘harm’ arising from false statements on The Paepae before, ‘On the courthouse steps‘:
It’s one thing to say: “Oh those statements are technically untrue and my feelings are hurt”, quite another to show demonstrable financial harm (a drop in sales, cancelled subscriptions etc) as a result of the ‘bad’ publicity or those specific comments.
see also: A tale of woe … or fevered imagination? and No April fool, Dean Letfus claims: “DEFAMATION!”
Fighting the reflex
On a related note, it seems to me that ACC minister Judith Collins is on a quixotic quest to prove ‘harm’ to her reputation as a result of published speculation about the source of a ‘leaked email’. Her lawsuit against two Opposition MPs is like a litmus test. Collins faction fans think she’s just great doing it. It plays to all their ‘Crusher Collins’ fantasies. Many other observers seem to think she’s merely grandstanding and the case will never get to court.
As a lawyer herself, Ms Collins is perhaps in much the same situation as Mrs Flannagan: Feeling distressed and wanting to ‘punish’ [Update: or suppress?] the person(s) she sees as responsible for that distress, feeling confident in her own judgement and training in the law. Ms Collins would do well to read Judge Harvey’s decision in this case: CIV 2012 004 925 Brown & Flannagan v Sperling
The natural instinct to ‘Silence the critics!‘ is strong, but sometimes we have to overcome our reflexes.
I’m not saying it’s easy.
– P
1 I’ve got to say: I think the act of emailing the employer of someone you disagree with online is pretty despicable. That’s nasty, unnecessary stuff, if you’re reading this Jacqueline. It’s crossing a boundary. That’s what Cameron Slater does. Enough said.
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.
– Best wishes, Peter Aranyi © 2012 All rights reserved.
Responses
See also: Speaking up for Madeleine Flannagan
and A response from Matthew Flannagan
Interesting read Mr P!
I was gobsmacked to see that one of their very own sock puppets had actually made this available online after it was obviously supplied to them by either Brown or Flannagan.
I fail to see how they can complain about anything that i had said about them causing them “distress” when it has been made plainly obvious that they are not worried about what private information the whole world has access to in regards to them.
I would have made this judgement available myself – had i not been concerned about carrying this issue on and the possibility of being accused of causing more “distress”…
Like i said – i am gobsmacked at this.
I would like to make one point. The episode where i had emailed MS. Flannagan’s employer took place straight after i had been on the receiving end of a threatening phone call from Ms. Flannagan where she advised that i was being “put on notice” over a blog post i had done – the National Party Cheaters one.
I had emailed Ms. Flannagan’s employer to enquire what being “put on notice” meant and if that was normal procedure for lawyers to make such phone calls. I had included in that email the blog post – to show the employer what i had been “put on notice” for and at that stage when i did that – there were not comments in relation to Ms. Flannagan or pain killers. [Comment – See comment in reply from Matt Flannagan below, which disputes this assertion re timing. – P]
Just wanted to clarify the context in which that email was sent.
Good read P.
Jac
PS – as of tonight i am in receipt of more legal threats from Ms Flannagan. She is complaining that i am harassing her and breaching her privacy by blogging information that she swore was true in her affidavit – [snip]
Apparently she is worried about me breaching her privacy as well – despite her making this entire judgement available online.
Bizarre!
Hi Jacqueline, thanks for your comments.
re the decision being published on the web: Yes, I did notice that, and question whether such publication is kosher. I don’t know.
Earlier this week Mr & Mrs Flannagan made much of a suggestion ‘contempt of court’ charges awaited anyone not a party to the litigation or authorised by the court to read the decision doing so.
My own inquiries to the court provided the information that while the documents would not be routinely released since they involved an application under the Harassment Act, I was free to apply to Judge David Harvey for a copy of the decision — which I did, and received my copy by email.
No explicit restrictions were placed on my use of the document, but I didn’t (and don’t) see a need to publish the decision as the anonymous nasty Christian blogger has done. (It’s not clear that he or she was provided a copy of the decision by team Brown-Flannagan.)
—
re your email to Mrs Flannagan’s employer: I understand you felt provoked and vexed. I still think it was a step too far for the reasons I outlined. But … your decision, your action, your consequences. I’m just being honest with you: I don’t like that behaviour.
—
re more legal threats from Mrs Flannagan: A friend of mine says, ‘How you do anything is how you do everything.’ Mrs Flannagan’s intimidatory approach to you in this case seems unlikely to alter. She has, as I have commented elsewhere, LOST. That won’t be easy for her.
And you are, despite Judge Harvey’s counsel/admonition to ‘now leave Ms Brown and Ms Flannagan alone’ [246] not doing so, with your recent criticism of the Flannagans’ fund-raising for a conference trip.
Jacqueline, that’s provocative and, I suggest, probably needlessly so.
It seems to me you’re having trouble disengaging. (Believe me, I can understand that.) It is probably in your best interests to do so.
– P
Criticisms and advice duly noted and appreciated.
I am struggling to disengage. I don’t read the nasty things that they (or their sock puppets) are doing or saying. I don’t believe that doing so would be good or healthy for me. I learned a long time ago that if i know something is going to hurt me, or not be good for me – then i shouldn’t do it. I apply that logic to the things that i choose to pay attention to on the internet.
I have however documented and saved it all without reading it for the sole reason that it may be required to help me in any future vexatious legal proceedings where they may again pretend to present themselves as the victims – and it is difficult to be aware of what is going on without responding – especially when they have provided me with so much information to work with.
I have thought about this overnight and i think it best if i take Judge Harvey’s (and your) advice and disengage.
I do appreciate your very well thought out summing up and opinion of this case and the judgement. Obviously, i am not perfect nor have i ever claimed to be – however if there is one word to describe their thought process behind these legal proceedings – that word is – vindictive.
They were not victims. Quite the opposite.
Cheers Peter
J
Good on you for taking my comments in the spirit they were intended.
– P
To the anonymous commenters trying to use this website to vacuously denigrate people involved in this dispute:
Please read http://www.thepaepae.com/comment-moderation/12596/ which includes …
Otherwise, you’re wasting your time.
– P
So in the same way you disagree with people attempting to gag people on the Internet. Your doing exactly the same so by not posting their own views.
Sure if they are very personal attacks and derogatory. You have a right to edit the responses. calling someone a Liar does not fall into this category in my view. They just have to at least back it up.
But careful Peter you are ironically doing exactly what you condemn.
I understand its your site you can do what you want. But just saying.
Hi Craig.
I don’t accept your suggestion that by moderating comments I’m doing the same thing that I ‘condemn’ or criticise.
As you can see from the post about moderation I referred to, I have a long-standing antipathy to lies, allegations and character assassination or smack-talk. Especially if they’re anonymous.
I feel no obligation to publish such material.
Read this: http://www.thepaepae.com/a-loathsome-piece-of-filth/23740/ with its conclusion: Treating people with contempt speaks volumes.
– P
Update: Do follow the link to Justine Larbalestier’s article:
http://justinelarbalestier.com/blog/2009/03/05/online-versus-offline-behaviour/
Not being remotely interested in the case in question I do, however, find it interesting that one must seek out information on a blog but not in a newspaper. I am constantly astounded by the number of people who don’t read the paper online or in its printed form.
On a personal level I can’t help wondering if I should get in touch with Bell Gully about their client’s claims of defamation which I’m sure pale into insignificance by comparison.
Hi Sarah.
Yes, I was a little surprised by that aspect, too. Bear in mind though, that finding was to do with an application under the Harassment Act — with the plaintiffs relying on statements that they’d been distressed by the comments.
Those comments might be described as harassment (they were, actually) but in Judge Harvey’s mind, as I read it, given the background and internet-savvyness of the plaintiffs, they could not shown to be the ’cause’ of the distress (if any) since they had to navigate to a site to read it, with the exception noted.
The judge quite rightly referred them to defamation laws which relate to the fact of publication affecting a reputation … not distress.
Given the punch/counterpunch aspect of the debate, which has seen nasty statements [Update: being perceived as coming] from all sides, I wonder if a court would be particularly sympathetic to the Brown-Flannagan case.
Is the Bell Gully reference to your business directory wallahs? Are they still hassling you?
– P
In this case its an Aussie who pokes his head up now and again and doesn’t like the fact that Google still references posts that are long gone. I’m that good at SEO that I can make Google do that 😉
When I got the last missive I actually had to read my own blog (unpublished, but still in the system) to remind myself who this bloke was. He has an unusual name so his past misdeeds stand out when you search. It must be hindering his efforts at promoting/financing his latest venture.
As someone whose name has been misappropriated by crooked internet marketing cowboys bent on ‘retribution’ for my criticism of them here, I have a wittle bit of sympathy (not much) for people (update: people like him) caught in the snare of Google.
My own approach was to just keep blogging good stuff and let the search engines eventually work out what was irrelevant.
As we’ve discussed before, I believe we each get the reputation we deserve. Eventually. Same with websites.
– P
[ The following is an ANONYMOUS COMMENT in support of Madeliene Flannagan.
I replied to the anonymous correspondent by email (see below) but was surprised and dismayed to get a reply from someone unconnected with the case or the Flannagans saying: “It appears that someone has also used my old email address [snip] @gmail.com to post anonymous comments on your blog. I think you are safe to not publish the comment as it is definitely not from me.”
We have discussed before my extremely low tolerance for people pretending to be who they are not on the internet. (e.g. Anonymous comment vs IMPERSONATION and Is it worth dishonestly defending a reputation? No.) I rilly rilly don’t like it. But that’s not quite what this comment was.
So I sent the comment (detailed but not vituperative as you’ll see) and my bounced email message to the Flannagans, asking them (a) if they knew who it could be from and (b) if they did, to pass my message on.
They replied that they don’t know who wrote it, but expressed agreement with the assertions and confirmed the timeline contained in the comment. That’s fair enough.
So, in the spirit of internet ‘openness’ I often discuss here (e.g. see Free access to information … to ‘hate’ it?) and because this website’s mission is ‘A Platform for Dialogue’ I’m going to publish this comment from, it seems to me, a well-intentioned sock puppet … – P ]
—
I am close to Madeleine Flannagan but I write this reply independently of her. I do not give my name because everyone so far who has supported Madeleine has been publicly and personally attacked on Sperling’s blog. I hope you understand.
Peter, I would like to ask on what basis do you claim “Given the punch/counterpunch aspect of the debate, which has seen nasty statements from all sides, I wonder if a court would be particularly sympathetic to the Brown-Flannagan case.”
Brown and Sperling were friends for about 3 months. Sperling met Flannagan once at bloggers drinks.
Brown attempted suicide. Sperling blogged about it. Brown was (understandably) upset by this.
Brown sent 1 text message in Jan 2011 in response to 4 (some nasty) blog posts about her suicide attempt and 1 email in Sept 11 in response to a nasty email sent to her boyfriend.
Flannagan sent 2 facebook messages in Jan 2011 in response to the blog posts about the suicide attempt. Then in a professional capacity acting on instruction in Jan 2012 made one phone call.
In response:
Brown has been subjected to 18 months worth of intermittent blog posts, a total of just under 50 and countless comments, accusing her of stalking, making fake rape complaints, inviting rape, faking suicide, attempting suicide to get attention, acting like a bunny boiler, abusing police time, committing perjury, bringing vexatious law suits, being a poor employee. Her photo, private correspondence, links to her employer’s website, a hand-written note from her 10 year old daughter indicating her upset state at her mother’s suicide attempt, and an offer to anyone who emailed to be provided with her suicide note were published on Sperling’s blog.
Evidence showing all this was filed in court. Evidence from Sperling denying these things was filed. The court agreed with Brown’s version of events.
Flannagan has been subjected to 6 months of blog posts and comments, her count is in the 30s for blog posts and the comments are countless. She has been publicly accused of being a drug addict, acting seriously in breach of the legislated professional rules for conduct, filing forged evidence in court attempting to frame a man for rape, acting unethically, hypocrtically, of being a bunny boiler, of lying, of conning money from people, of bringing vexatious law suits, of bullying, of harassing, of stalking. Links to some of these claims were emailed to her employer and Sperling did other actions that caused other lawyers, a judge, police officer and other professionals Flannagan was working on a different case to see her claims. Sperling has complained the law society about Flannagan.
Letters to Sperling asking her to stop from each Brown and Flannagan’s lawyers netted more blog posts, this time attacking their lawyer as well.
Filing in court netted more.
An offer to withdraw proceedings in exchange for a cease and desist and withdrawal of the public comments netted a blogging frenzy.
Evidence showing all this was filed in court. Evidence from Sperling denying these things was filed. The court agreed with Flannagan’s version of events.
Through this time Flannagan issued 1 blog post clarifying false claims made about her and confirming the fact of the case. It did not name Sperling. It called strongly for respect to be shown to all parties and it stated that if anyone named a party or wrote anything derogatory about a party that their comment would be deleted.
Flannagan wrote a very moderate media release once it became apparent that Sperling had given an interview to the media.
Since the decision Flannagan and her husband have written 4 comments on their blog in response to aggressive questions asked of them by someone in Sperling’s camp. Two of these have simply been explanations as to why they will not publish the decision.
So again, on what basis do you claim “Given the punch/counterpunch aspect of the debate, which has seen nasty statements from all sides, I wonder if a court would be particularly sympathetic to the Brown-Flannagan case.”
When did Brown or Flannagan make any nasty statements?
Flannagan and Brown were viewed by the Judge as being the victims of a nasty campaign of unfounded claims with no basis in fact made by Sperling. The Judge said:
—
[ I replied by email: ]
[ Reading back my note to the anonymous commenter, I think perhaps I was unfair to imply his/her comment ‘denigrated and demonised’ Jacqueline Sperling. I’d received a number of shrill and nasty comments from sock puppets by the time this one appeared, so perhaps I suffered from spite-fatigue. I’m glad I replied.
Yes, certainly the comment is a ‘one-sdied litany’, but its tone is reasonable, and the timeline is a fairly low-heat rendering of an intense series of events and actions. It also touches on one of my personal soft spots: It asks me to put up or shut up. 🙂
The content, on reflection, is worth recording here to pursue a sense of fairness — a value at the heart of this website — whether or not anyone knows who actually wrote it.
– P ]
UPDATE: Jacqueline Sperling takes issue with the truthfulness of a number of the assertions in this anonymous comment, including (but not limited to) the description of the number of blog posts she is alleged to have authored about the plaintiffs and what those posts or comments contained.
Hi Peter,
My reading of the judgment was that although a blog post would generally not result in a causal link between the blogger’s actions and distress caused (due to the “victim” having to seek out the blog post), it would not always be the case because a blogger may be aware (or become aware) that their posts will be brought to the attention of the “victim”.
The issue then, of course, becomes whether victim can reach the threshold demanded by the word “will”.
In Judge Harvey’s judgment, my reading of his conclusion was that the threshold was reached, largely it seems due to Ms Sperling’s ability to tell who had viewed her blog (using technology I don’t pretend to understand, not being a blogger myself).
However, where the Applicants’ came to grief was the objective test of whether a reasonable person in their particular circumstances would have been distressed by the harassment. Harvey found, as you point out, that the Applicants’ were basically big enough and ugly enough, due to their previous internet activity, to look after themselves and that they should have seen it coming…
Or have I misread the judgment?
Thanks for your comment Jay.
The words ‘big enough and ugly enough’ or any synonym/paraphrase don’t appear in the judgement 🙂 but I get what you’re saying.
He seems to be suggesting a reasonable person with their experience of the internet and the culture of the blogosphere would be/should be able to handle stuff being chucked at them, and they ‘engaged’, so fair game.
Is that reasonable? Well, to be fair to the plaintiffs, I think Judge Harvey’s judgement reads a little *inconsistently* on their distress, or ability to cope with what was aimed at them.
I know (but sometimes forget) that as ‘tough’, ‘robust’ or ‘confident’ as anyone may appear (lawyer or not) we are, all of us, thin-skinned and sensitive to criticism and harsh words. That’s just human nature. We often tend to meet fire with fire, or threat with threat, too.
Another factor can be the volume of criticism/negative statements and the repetitive nature of it over time … which can be very wearying, on both sides, and upsetting.
As noted, harsh criticism/abusive or nasty comments and the release of private information *can* be seen as harassment (I agree with that) … but Judge Harvey suggests a blog post is ‘static’ and the action step needed to GO and read it reduces the causative link… But then, as you allude to, he talks about the defendant’s blog becoming a place the plaintiffs might be likely to come across the offensive material.
Not to mention the role of ‘friends’ who point the material out to the ‘targets’ with versions of ‘You should see what she’s saying about you now!’ (Which is, let’s face it, pretty bloody unhelpful in this situation, doncha think?)
– P
Peter –
In response to this i think it is important to point out that a lot of what i said – was actually said in response to comments, emails, phone calls, friend requests on Facebook etc etc from the plaintiffs.
It was not as though i was sitting around blogging about these women at random trying to get their attention.
In every instance, without exception – i had written what i had written because they had come to me. Hence why they saw it in the first place – they had wanted a reaction – and they got it.
Jackie
I’m sure it felt like that to you, Jacqueline, but here’s the thing:
It seems clear they were trying to PUT SOMETHING RIGHT, as they saw it. They were responding to your words and actions.
I strongly believe that’s the case.
Please don’t try to re-litigate it here.
In my opinion, no-one goes to the lengths Mrs Flannagan, in particular, went to just out of spite. I just don’t believe that of her. Not at all.
Time to leave it, Jackie. Disengage.
If I may quote Voltaire … “A long dispute means both parties are wrong.”
– P
A good summation, Peter – thanks.
I guess one of the concerns I’ve got with the judgment is the notion of ‘engaging’ seeming to implicitly prevent a victim from seeking a remedy under the Harassment Act.
The “real life” equivalent would I suppose be confronting the author of a series of distressing leaflets attacking you, only to find later that because you had “engaged”, you could only seek a remedy through defamation or somesuch.
I’m not sure that Harvey is specifically saying or meaning that, but it certainly seems to be strongly implied. However, the vagueness of some of his language towards the end of the judgment means that such an implication only applies to those who are active in the blogosphere?
I’d be interested in your views on that…
Jay, I think he is saying that.
I think he is saying that if the parties are ‘schooled’ in the culture of the blogosphere and the robust argumentative, allegation/counter-allegation nature of internet debate, they will be treated differently in situations like this (i.e. applying for restraint under the Harassment Act).
Internet culture is to post your side of the story on an appropriate platform.
Judge Harvey’s judgement is, as we have both observed, somewhat double-minded in its treatment of the ‘distress’ experienced by the plaintiffs.
But it seems to me he is saying taking offence isn’t the same thing as being harassed, therefore the Harassment Act protections aren’t available … no matter, it seems he’s saying, how ‘fragile’ the person is, if they’re an experienced blogger, they ‘engage’, and, crucially, if they act to seek out the (published) comments.
Bear in mind, it’s fair to say Mrs Flannagan, once professionally engaged by Ms Brown, unquestionably had an obligation to review Ms Sperling’s blog. That got messy for her, but realistically, what were her options?
Despite some of the comments in his judgement in favour of the plaintiffs, which can be seen to amount to good bedside manner, one has to look at the outcome: Application dismissed.
That’s a tough stance but errs on the side of freedom of expression.
– P
Hey, sock puppets. Stop it.
Peter, I think this analysis is in places misleading. You write:
This grossly understates things.
The judgment states that Sperling’s comments were more than just “aggressive and critical”; it states they were arguably defamatory and some even accused Flannagan and Brown of criminal and other unlawful behaviour.
Judge Harvey notes, for example, that Sperling falsely claimed Brown had falsified evidence for a court [127], repeatedly made false allegations of rape [126] [115]. Harvey notes that Ms Brown had had a suicide attempt and Sperling taunted her about whether she would attempt suicide again [124] and [115]. At [123] he notes Sperling falsely publicly claimed Brown had been “misleading the police and that she was being investigated for false complaints.” He notes at [108]:
Similarly with Flannagan, he notes Sperling falsely accused her of being a drug addict, of doctoring evidence in a court proceeding to frame a man for rape, and was derelict in her duties to the court.
It would have been more accurate to point this out rather than portraying each of them as complaining merely about “aggressive and critical comment.”
Moreover, to count as specified acts of harassment, as these things were found to be, it was not enough that they be “critical or aggressive” these things have to be part of a pattern of behaviour targeted at the complaints. They have to be offensive, objectively so, there has to be several of them and they have to have been left in a place where the applicants would find them or be brought to their attention.
Judge Harvey found instances where Sperling’s comments met all these criteria. So the suggestion that he simply found she had used an “aggressive and critical” tone, really distorts the situation to your readers.
You go on to state Judge Harvey:
This is out of context. You quoted the first half of [230], here is the full context:
In other words, he argues in and of itself that publishing comments on a blog cannot cause distress; however, in the next paragraph he argues that in Sperling’s case, given she knew the posts would likely come to the attention of the applicants, this argument does not apply.
Quoting a paragraph and neglecting to point out the next one actually qualifies the point and says the opposite inaccurately portrays the judgment.
You then state:
This again is inaccurate. Here is what Judge Harvey actually said:
Here he states that although Sperling knew Brown was accessing the blog, and so the argument you cited from [230] did not apply, there were “some occasions” where Brown did so by her own choice.
This is not the same as saying “for the most part” they accessed her blog; in fact, it is inaccurate to say that both in reality and based on what the judge said.
You then state:
Actually Harvey discusses this very point, here is what he says:
Here he finds the intrusive test was not met, in some cases, but in many cases it was. This, of course, has to be the case because he finds 14 specified acts of harassment occurred and the intrusiveness test needs to be met before one can identify a specified act. What he found was the intrusion did not cause sufficient distress; that is a different issue.
You go on to state:
Again, context helps. Here is the fuller citation:
Just after making the comment you cite Judge Harvey states that in he did find some of Flannagan’s claims about distress plausible. The attacks on her employment were the primary concern Flannagan raised; they were not a trivial feature of her application and they were well documented. He failed to grant the order because Sperling was not believed by Flannagan’s employer, not because there was no distress caused by Sperling.
It seems to me that your analysis attempts to whitewash Sperling’s quite shocking conduct, minimise what she did as “critical comment”, and exaggerate Judge Harvey’s criticisms of the applicants. I refer you to your own comments:
When Sperling makes multiple public accusations of criminal and unlawful and false conduct without evidence, and Judge agrees she did this, those who complain are trying to merely stop “critical comment”, make her pay.
She falsely portrays herself as the victim, and your post does not help in that regard, yet Judge Harvey made it quite clear that this is not his view. After alluding to Sperling’s attempts to “cast herself as the victim of harassment by Ms Brown and Ms Flannagan” in her affidavit he writes, following a summary of the evidence,
He made that quite clear in the courtroom too by making the unusual step, which he acknowledged he was not in the habit of doing but would make an exception to do in this case, of telling both applicants that they each had his sympathy as he left the courtroom.
Sperling has not provided a shred of evidence that stands up to scrutiny for any of the false claims she has made and repeated to make, some of which have been made on your blog. Her statement above that she did not publish the first of her false and defamatory “pain drug addict” comments about Flannagan on her blog until after she emailed Flannagan’s employer; therefore Flannagan is not being honest when she claims her employer saw it is false.
First, I have heard Flannagan’s employer speak of having seen it, as well as all the other false and defamatory comments Sperling published. Secondly the screenshot of the first of these comments was provided the court in the affidavits Sperling has been served copies of; it clearly shows the date of the first pain drug addict comment as 26 January 2012, compare that with the header from the email Sperling sent Flannagan’s employer:
Judge Harvey stated in the judgment that Sperling’s claims to have done nothing to either applicant, that she did not identify either applicant on her blog prior to their filing against her is “disingenous” as she clearly did.
Hi Matt,
Thank you for your calm and detailed response. I won’t go through it point by point, if you don’t mind, but I publish it here as a ‘right of reply’.
I’m not sure you make your case about my quoting ‘out of context’ convincingly, but let our readers decide. It’s not my intention to treat either party unfairly, as I hope you know. My (flawed? Perhaps) analysis is what it is, for better or worse.
What you and Madeleine’s anonymous friend (http://www.thepaepae.com/implications-of-recent-internet-gagging-attempt/24396/comment-page-1/#comment-16184) need to process and fully accept is the dismissal of the application for restraint. (I hope I can say that without causing offence.)
I referred to Judge Harvey’s ‘bedside manner’: There is no doubt that the decision contains much of comfort and support to your ‘side’. But forget the fine print. Bottom line: Application dismissed.
That’s bad news for team Brown-Flannagan and no amount of after-match analysis or cherry picking by any of us can change it, short of an appeal. (I don’t encourage you to take that path.)
No doubt this dispute has been (and, by the look of things, continues to be) an enormously stressful, time- and energy-burning experience for you all. I sympathize.
I get that some of the statements made about Madeleine could be seen by some as potentially professionally damaging. That’s a hazard for a lawyer in a high profile case, as Judge Harvey indicated.
It occurs to me that a choice Madeleine had — a road not taken, now — was to just roll with the punches as far as Jacqueline’s comments about herself were concerned, and stick with being Ms Brown’s lawyer. Did injecting herself in the case help or hurt? I wonder.
I wish Jacqueline hadn’t written/published such comments; and also that she wouldn’t pursue the law society complaints she’s laid, which have an appearance (to me) of being unnecessary and vindictive. That’s something of which she accuses Brown-Flannagan. Such actions won’t help anyone put this behind them. And ‘putting behind’ is what’s best for everyone concerned, in my view. But what do I know?
Those of your supporters (or unrelated detractors of Ms Sperling) who have drenched parts of the internet with foul and histrionic attacks on her, dredging up her past to abuse and denigrate her, have done you and Madeleine no favours in that regard.
Do I ‘whitewash’ Ms Sperling, as you suggest Matt? I don’t think so. If I do, perhaps it’s partly in reaction to the bile poured on her by cowardly anonymous haters — but I freely admit: those haters may be completely unrelated to you, and just enemies using this case to smack down someone whom they oppose for other reasons.
I respect Judge David Harvey, and expect you do so too.
It’s a tough call, Matt, but that’s how he called it.
Best wishes, – Peter
It occurs to me that a choice Madeleine had — a road not taken, now — was to just roll with the punches as far as Jacqueline’s comments about herself were concerned, and stick with being Ms Brown’s lawyer. Did injecting herself in the case help or hurt? I wonder.
How did Madeleine inject herself into the case?
She advocated on behalf of Brown to Sperling and got for her trouble a direct threat to her entire career. Remember, Sperling contacted her employer with a claim that could hardly be more inflammatory.
Now, maybe you’re saying that at *this* point Madeline should have walked away. But I don’t think it’s reasonable to describe Madeline as “injecting” herself into the case, as though she made a decision to become part of the dispute on a whim.
“How did Madeleine inject herself into the case?”
She became the Second applicant, I understand from the cover sheet of the decision (see above).
Not to make a big deal of this line of thought (water under the bridge and all that): but Madeleine *could* have focused on a legal case for protection for Ms Brown from the [alleged] harassment, seeking restraining orders for a client in a demonstrably ‘fragile’ state. They might have won.
And she could have dealt with the ‘fire’ she felt was directed at herself differently. Or ignored it, as most lawyers do, or made it the subject of a second application, if necessary.
Madeleine’s profile as an experienced debater/figurehead of controversial social issues (abortion, civil unions etc) was seen by Judge Harvey as defining her as ‘robust’ … yet, as noted in my post, what I take from his decision is that to be successful a Harassment Act application relies on ‘distress’.
Talk is cheap (on my part, I mean). No doubt Matt & Madeleine and their advisors would have carefully considered their options.
– P
See my post on ‘hypervigilance’ (http://www.thepaepae.com/the-curse-of-hypervigilance/24604/) which discusses how the credibility or otherwise of claims against one’s person are regarded.
““How did Madeleine inject herself into the case?”
She became the Second applicant, I understand from the cover sheet of the decision (see above).”
According to Madeline’s 19 May blog post (see MandM’s RSS feed) her separate application and Debbie’s separate application “were joined under one CIV number” by the court.
“Madeleine *could* have focused on a legal case for protection for Ms Brown from the [alleged] harassment, seeking restraining orders for a client in a demonstrably ‘fragile’ state. They might have won.”
As soon as Jacqui Sperling attacked her personally to the point where the court saw that attack in her the original case that Jacqui Sperling was blogging about, made trouble with her employer, etc she was prevented from acting by conflict of interest. Don’t forget how regulated lawyers are.
“And she could have dealt with the ‘fire’ she felt was directed at herself differently. Or ignored it, as most lawyers do, or made it the subject of a second application, if necessary.”
I highly doubt that other lawyers get fire like the infurno Jacqui Sperling set. There is only one way to deal with someone messing with your employment: the law.
And it was a separate application. See above.
“Talk is cheap (on my part, I mean). No doubt Matt & Madeleine and their advisors would have carefully considered their options.”
Well it’s easy to form an armchair view without fully being aware of the facts. I don’t claim to have them all either and I don’t know any of the parties in this issue apart from their blog faces.
Their blog faces tell me this much: Jaqui Sperling writes whatever is in her head, is reactionary and frequently crosses lines in her opinions that look like defamation from my armchair. Madeline researches, takes her time, considers others and places a strong importance on the truth and being reasoned. Debbie I can’t tell because her blog is no longer online but if Debbie and Madeline are friends and both engage in analytic type professions then you’d think they’d have that in common.
Thanks for explaining that about a perceived ‘conflict of interest’ affecting Madeleine’s ability to act for Ms Brown in her application, and what you say about the court conflating the two separate applications.
Interesting. Live and learn, I guess.
As I noted to Madeleine’s anonymous friend above:
Threatening lawyers’ letters are by their nature an aggressive act, in my opinion. Their deployment is almost always bound to raise the temperature, however carefully written.”
But there’s an old saying: ‘If all you have is a hammer, everything looks like a nail.’
– P
Hi Peter.
I see you don’t like what I’ve written. It’s good to have an independent eye sometimes, and I must confess that my little corner of the ‘sphere doesn’t always get a lot of comments from critics even though I do value contrary opinions.
I’m not above admitting I’ve been stupid. I’ve been quite stupid actually, because I just realized something.
When I started reading the blog that was harassing Madeline, I didn’t see what her case was. That was because (I know now) Sperling had edited out all the worst stuff when she realised she’d picked a serious fight. But it wasn’t what Madeline said that made me realise the true character of Sperling, is what what Sperling herself said. It was the ongoing vitriol, the paranoid and the heavily ironic comments like “I never defamed those crazy people”.
Meanwhile, Madeline has been quite quiet.
In fact, I don’t know Debbie at all yet after a while I was forced to conclude that even if Debbie was every bit as evil as Sperling was making her out to be, she still had my sympathy!
I’ve already toned down some of the comments I made, and I will go back through those posts and do it again. They’re clearly giving at least one person the wrong idea about who is the victim here.
I would note that while I have been aggressive, I in no way endorse anyone who dredges up Sperling’s past and have pointedly avoided that myself. My problem is not the past, it’s her actions in the present.
Thanks for dropping by.
Thanks, too, for the self-awareness displayed in your admission: ‘I would note that while I have been aggressive [toward Jacqueline], I in no way endorse anyone who dredges up Sperling’s past …
I think your behaviour online towards Jackie Sperling has been foul, no matter what you accuse her of doing to whom and when.
Repeatedly using an insulting nickname attacking her sanity, trying to harpoon her with your mutually-avowed Christianity, and ‘aggressively’ going after her with personal attacks in post after post on your anonymous blog gives me the impression that you’ve lost balance.
How it looks: In your mental landscape it seems right to you to tackle someone whom you portray as having ‘carried out an online bullying campaign’ with … (wait for it) an online bullying campaign.
Oops.
I’ve discussed a related issue before in these terms:
See: http://www.thepaepae.com/the-paradox-of-animosity/258/
You may feel justified, scrubone, on the basis that you are ‘defending’ your friends Matt and Madeleine. Sorry, no.
You’re expressing too much venom. You’ve slipped over the edge.
Find your way back.
– P
“Repeatedly using an insulting nickname attacking her sanity, trying to harpoon her with your mutually-avowed Christianity, and ‘aggressively’ going after her with personal attacks in post after post on your anonymous blog gives me the impression that you’ve lost balance.”
Scrubone doesn’t even come close to Jacqui Sperling’s even worse treatment of Debbie and Madeline and you tell him off harshly and let Jacqui Sperling repeat her falsehoods on your blog. Jacqui Sperling’s behaviour was heinous and unlawful. If you break the law you’ve only got yourself to blame if your victim turns to it for remedy.
Jacqui Sperling deserved legal action, deserved the findings made against her and deserves further action because instead of stopping, of removing her defamatory material she has kept on publishing it, and some on your blog. Why did you let her do that when everyone else commenting is held to a much higher standard?
You judge Madeline for protecting herself from attack. Why should anyone have to put up with their reputation being falsely and wrongfully harmed to the point it risks impacting their ability to earn when there are laws against it? What reason would anyone have for doing that? And who are you to judge Madeline for taking the steps the law said she could take? Jacqui Sperling was in the wrong.
Another thing, how could Madeline represent Debbie against Jacqui Sperling when she had gone after Madeline so hard to the point all the professionals in the first case had read her defamatory statements about Madeline? Conflicts of interests would preclude it. That was Jacqui Sperling’s intention no doubt and is why she has demonstrated a pattern of behaviour of attacking lawyers, she’s up to 3 law society complaints over this case already. What a bitch.
It is really quite scummy to try to paint this as even. It is not. You published above that Madeline said the anonymous comment was fairly accurate. One approach in a professional context, whether someone finds that intimidatory or not is not even close to warranting what Jacqui Sperling spent the next 6 months obsessively doing.
And don’t even get me started on what she did to Debbie. Blogging about someone’s mental health low points, publishing her daughter’s note, offering her suicide note up to any who asked? Disgusting.
[snip]
I have got something to say to Jacqui Sperling: don’t like getting sued? Don’t break the law.
Yeah, I ‘m terrible hypocrite. 🙂
Re your ‘Jackie started it and she did worse’ lament, let me repeat this from another context:
“It’s unworthy to fight what you see as unfairness with more unfairness.”
Cally, your blanket and repeated descriptions of Ms Sperling as having acted in an ‘unlawful’ manner, breaking the law, etc aren’t actually supported by the *outcome* of Brown & Flannagan v Sperling.
I certainly don’t ‘judge’ Madeleine for defending her reputation. Not at all. As I said in a earlier comment to Jacqueline:
Do I judge Madeleine’s actions? My thoughts on Judge Harvey’s decision are laid out above for anyone to read, and I’m happy to give reasonable people a chance to state their own views on it here, with a smidgeon of accountability. I’ve culled nasty and pointless abuse, and what I see as low-value gibes.
I don’t like your ‘What a bitch’ comment, but I’ll let it slide in this instance. It doesn’t reflect well on you, nor does the somewhat breathless ‘character assassination’ theme of your contribution here.
Do I judge scrubone for his frankly awful tirade of abuse and denigration toward Jacqueline? Yes, I do. It’s not to my taste.
And in all seriousness, as I tried to say here: http://www.thepaepae.com/a-loathsome-piece-of-filth/23740/ I don’t care how nice or virtuous he is in other parts of his life, or that he’s speaking up for a friend (I respect that motivation, naturally) … Treating people with contempt speaks volumes. Always.
You write almost as if I have defended Jackie’s actions carte blanche. And that I ‘paint it as even’ which is ‘scummy’.
Is that how it seems to you? Really? In that case, let me suggest — kindly — you’re not paying proper attention.
I will not further canvas Ms Brown’s state of mind or vulnerability than the comments in the court judgement.
From your comment it’s clear you despise Jackie Sperling. I’ve never met her. I do know that people are NOT their online persona. Sometimes, in passion or outrage one can write things that lead others to project a very negative picture onto you.
Let’s cut each other some slack.
– P
“Cally, your blanket and repeated descriptions of Ms Sperling as having acted in an ‘unlawful’ manner, breaking the law, etc aren’t actually supported by the *outcome* of Brown & Flannagan v Sperling.”
You are looking at “outcome” and are missing the findings made in the judgement and the other obita statements.
The Judge repeatedly made it clear he viewed Jacqui Sperling’s statements as baseless, not true, not reasonably held and defamatory. He could not make a finding of that as that was not the test but he made it clear that had he been asked to he would have. The statement at the end of the judgment strongly implies that and it is consistent with his findings on the facts.
Defamatory speech is unlawful speech, it is breaking the law. There are laws against defamation (and harassment, and he did find harassment).
“Do I judge scrubone for his frankly awful tirade of abuse and denigration toward Jacqueline? Yes, I do. It’s not to my taste.”
Fine. My question was Do you judge Jaqui Sperling for her frankly much more awful tirade of abuse and denigration toward Madeline and Debbie?
I don’t think you do. I think you see Scrubone as being worse when Scrubone is not even is the same ball park and that is not to my taste.
Should I even reply to this, Cally?
Please try to be accurate. You’re doing a poor job joining the dots, in my opinion.
Of course I’m looking at the *outcome* … you say that as if it’s A Bad Thing.
“Defamatory speech is unlawful speech.”
Yes, but defamation hasn’t been proved, despite your bold statement.
The court wasn’t even asked to consider it.
No-one was ever reliably called a ‘law breaker’ on the basis of your fanciful “the judgment strongly implies that” … and rightly so.
The application was dismissed. As I read it, NO crime has been proved, no conviction entered.
Yet you *keep* calling Jacqueline a law breaker. That probably is defamatory.
Ironic, huh?
– P
As mentioned below, I’ve removed your 12.23 comment.
If Madeline had cause to believe that Jacqui Sperling had acted unlawfully towards her, vis a vis harassment, defamation, then Madeline was justified in taking legal action.
The outcome shows that harassment did occur, there were findings that said so. The outcome shows that the Judge, an expert in such things, thought defamation occurred also.
“Yet you *keep* calling Jacqueline a law breaker. That probably is defamatory.
Ironic, huh?”
For the reasons set out above, and on the basis of the findings in the judgment, my view of her as a law breaker is reasonably held and I am quite confident a court would accept that.
You *keep* letting her call Madeline unethical and unprofessional and dishonest on your blog when there is no line among the 251 paragraphs of the judgement to support that.
The judgment saying that such claims of Madeline are untrue means you have no way of claiming that Jacqui Sperling’s comments are reasonably held and as they cast her in a negative and standing lowering light, I would say that your letting Jacqui Sperling say these things on your blog, and keeping them there is probably is defamatory.
Ironic much?
Did I criticise Madeleine anywhere for defending her reputation? I thought I’d addressed that already. No, she has that right, of course.
This comment of yours is problematic:
“The outcome shows that harassment did occur, there were findings that said so. The outcome shows that the Judge, an expert in such things, thought defamation occurred also.”
(1) Look I’m not a lawyer’s elbow, but as I understand it, harassment isn’t illegal if it’s not found to be illegal, therefore actionable. It wasn’t in this case. Hello?
(2) Defamation wasn’t proved. You say Judge Harvey ‘thought so’. Really? Where?
Matt Flannagan quotes Judge Harvey as saying some of Jacqueline’s comments “could be arguably defamatory”. (Please read my reply to Matt above.) That’s some way short of confirming your statement. Please cite a stronger statement from Harvey if you can.
It seems to me that for you/me/anybody to describe someone as a ‘law breaker’ (as a matter of fact, rather than your ‘reasonably held’ weasel words) you need to rely on a conviction or a judicial order to say as much.
With respect, Cally: What part of ‘Application dismissed’ aren’t you understanding?
– P
Cally, Judge Harvey stated that Ms Sperling’s blog posts may possibly be defamatory, but he drew no conclusion on that issue. His judgement relates solely to whether a Restraining Order should be granted.
The legal test for defamation under the Defamation Act is different to the test for harassment under the Harassment Act. Judge Harvey did not address any legal test beyond that required under the Harassment Act and the common law relating to the Act.
His remarks regarding defamation are in the context that an action for defamation is a legal avenue open to Ms Brown and Ms Flannagan – an avenue that may (as opposed to ‘would’) have resulted in a different outcome for the Applicants.
Of course, even if Ms Sperling’s comments were found to be defamatory, there is still the vexed question of proving actual damages…
Only corporate entitities have to prove pecuniary loss, read the Defamation Act.
People need only show identification and publication of a defamatory statement that is neither true nor honestly held. No need to show actual damages.
Certainly, a private entity doesn’t need to prove actual damages to gain a declaration that defamation has occurred. And I wasn’t attempting to state that, although I may have been somewhat vague in my use of language…
What I was trying to briefly point out as an aside, albeit obviously not particularly well, is that a declaration doesn’t do much for the wielder of said declaration. Unless one is Judith Collins, no one expends money on a defamation suit simply for a declaration – it helps to prove that you should get compensation for the damage caused to you…
“trying to harpoon her with your mutually-avowed Christianity,”
I’ve actually written very little on her supposed christian faith. I wrote one post which talked about how she has failed to show any signs of repentance even though she made a post on repentance. I think that’s a pretty fair cop myself.
“and ‘aggressively’ going after her with personal attacks in post after post”
There was a glut of posts, but only because the court decision came out and the matter was no longer before the courts. I’ll grant that you find the posts were aggressive personal attacks, yet they are backed by fact – often facts admitted by Sperling herself. I guess I value truth more than politeness when dealing with nasty people!
I find it interesting that you have so much venom for me, yet so little for someone who has been found to have committed over a dozen acts of harassment, including telling the most vicious sort of lie to try and ruin someone’s life, and repeated attacks on a rape victim!
“on your anonymous blog”
My blog is written under a pseudonym, which as been around for 6 years. I’ve made literally thousands of contributions to online discussions in that time. I can assure you that after 6 years, I’d actually be more anonymous (in terms of what you could find out about me) if I used my own name.
Thanks for your reply. (I’ve ‘unapproved’ your other comment as I don’t operate a blog to publish statements of that sort.)
Please refer to http://www.thepaepae.com/apposite/19300/
Of course any measurement or calibration of levels of ‘venom’ is subjective … and largely in the eye of the beholder.
It’s not my intention to be venomous, nor launch ‘aggressive personal attacks’ (I slip sometimes), but it seems it is yours?
I don’t have time nor the desire to comb through your blog to see what a well-balanced human being you are aside from this nasty ‘truth-telling’ campaign against Jacqueline.
What I read of your self-described ‘glut’ has been enough input for me.
– P
It’s not my intention to be venomous, nor launch ‘aggressive personal attacks’ (I slip sometimes)
You’ve accused Madeline of using sock puppets (and I’m guessing you consider me to be one). That’s pretty nasty, especially given you’ve no proof.
Oh good. Let’s get clear about this.
Let me be explicit: I don’t think or suggest Madeleine or Matt have posted or attempted to post here as fake identities/sock puppets.
I asked them about some of the stuff that’s been (anonymously) posted on Cactus Kate’s comment stream, including Madeleine’s ‘media statement’, some Facebook discussion about hard drive names, and some detailed extracts from Judge Harvey’s decision before it had been released. They expressed lack of definite knowledge about who did that … and I accept their word without question.
In the same location there’s also some (in my view) nasty stuff dredging up Jacqueline’s past and (anonymously) shovelling abuse at her, and anyone expressing a contrary view. (You think I’m nasty scrubone? Go and read it)
Perhaps we’re operating under differing definitions of the term ‘sock puppet’. Perhaps I’m using the term incorrectly.
I don’t think you’re Madeleine or Matt. I discussed your campaign with them and they said your blog has been around longer than them. (I don’t have the impression they know who you are. Didn’t ask.)
It’s a funny thing: sometimes one’s supporters can go ‘too far’ in their defence.
Gently, scrubone: That’s what I think you did.
For the record: I don’t think I’ve been ‘nasty’ to Madeleine, nor called her untruthful or dishonest. If you do, show me where.
– P
Fair enough, and I accept your explanation completely.
I suggest you consult wikipedia to brush up on the definition! It’s a pretty serious thing to accuse someone of using sock puppets in the blog world.
I don’t have time nor the desire to comb through your blog to see what a well-balanced human being you are aside from this nasty ‘truth-telling’ campaign against Jacqueline.
Yea, I wouldn’t recommend it either. 😀
But you’re welcome to comment on my new subtitle.
I tend agree with scrubone and I’m writing this only because I am sure Jackie will read it.
Call me a sock puppet it you like but I do not know ANY of the players in this little drama at all. I live in the South Island and while I love blogs I have never met any blogger of any size or shape in my life.
I’m familiar with Jackie only from her reasonably regular comments @ keepingstockblogspot.
I vaguely remember when Michael Laws went public over a woman who was possibly going to release texts from him – I never joined the dots and now I know I could care less.
I did not know anything about Whaleoil’s indiscretion with [snip] Brown until Jackie’s recent post concerning the judgement on this case. (Actually I may have seen something about ‘Bloggers Affair’ @ NZHerald that lead me to Jackie’s site in the first place)
I am for all money totally new to this melodrama and was very much in the Jackie Sperling camp a few days ago.
I read her posts and even looked through her archives to get some perspective, I also visited Madeleine’s blog but essentially there was nothing there that would win me to her position so I believed that Jackie was clearly in the right.
Human curiosity being what it is I looked back a day or two later and I could see that Jackie was not letting this rest, although I seem to remember that she had agonizingly claimed she would – indeed had to for her own sake.
She seems incapable of letting things just ‘be’ and I would suggest whatever dysfunction is at work currently is the very dysfunction that has created this entire mess , and yes Jackie, YOU created this entire mess.
I have read the judgement and while I’m not a Lawyer I love all things legal. I think it is an excellent judgement and I think Peter’s analysis and comments on it are bang on the money.
The judgement rules on specific points of Law which by and large I agree with – but this judgement in no way vindicates Jackie, if she had any self-awareness she would realise that it, and societal standards, utterly condemn her behaviour and I am literally gob-smacked with her view on this entire mess.
I started by saying I agree with scrubone (don’t know him either) and I read the judgement over on his blog where I made a comment that is in much strongly language than I am posting here. I do this out of respect for the Author of this blog, not for Jackie.
In reality I have arrived at my conclusion that Jackie is at fault primarily from her own words, I hope one day she will re-read what she has written and reflect on it all and be as gob-smacked as I am… because if and when that day arrives that and she can see her words and actions for what they are then she may have moved on and found some healing.
Welcome. I appreciate you keeping a civil tone, for whatever motivation. Thank you.
Have you ever been involved in a lawsuit? I have, and I’ve supported another friend through one — it’s enormously stressful (far more than I can explain) no matter how certain you might be of your grounds. It’s like being hunted by a predator. It’s a real challenge.
Behaviour and decisions that from the outside might look ‘irrational’ and ‘fixated’ can just be a temporary stress response, or a reaction to fear of a bad outcome. Under threat, our cognitive functions can be impaired — literally our ability to process information — and our capacity to easily ‘disengage’ (even though that might unquestionably be the rational thing to do) can be, well, disabled.
Another acquaintance of mine, uber-left brain, has an eerie ability to ‘compartmentalise’ and hence I have watched him survive pressure that would make me explode. Or scream.
Both ‘sides’ of this dispute have been through the wringer emotionally and there’s a natural grieving process and disentanglement that needs to occur.
You may not respect Jacqueline, and, with the luxury of detachment, may feel you’re able to see where you think she should ‘be’. I get that.
I think you’re mistaken in your assessment of who ‘created this entire mess’. It’s more complicated than that, let me suggest. But I agree, as previously noted, I wish Jackie hadn’t written some of her words.
Like Debbie, like Madeleine, I see Jacqueline is in ‘process’ — and hopefully decompressing after the court case.
Outsiders flinging garbage (and the ongoing Law Society complaint investigations) are going to keep the stress levels up for a while longer. Sadly.
– P
Laywers are bound by law to act on instruction. They also have duties to the court to act when they see contempt for it. If they do not do these things they risk professional discipline.
Madeline acted for both reasons and contacted Jacqui Sperling. Jacqui Sperling went on an harassment spree. When it impacted her career and her efforts to defuse failed, Madeline availed herself of the law.
Whose fault was all that? Jacqui Sperlings for being so obsessed with Debbie she blogged herself into contempt of court and a defamation warning. Then for being so enraged at being held to account (if a phone call can meet that threshold) she blogged herself into harassment proceedings. Now she continues. Again the fault is 100% hers if more lawsuits follow.
Jay, read Matt Flannagan’s response to Peter. You are still under Jacqui Sperling’s spell if you think Peter accurately assessed the judgment, and if you think it is a good judgment. I have plenty of law industry friends who think it is not and needs appealing.
Well, we agree about *part* of that. As I said a few days ago in a reply to Jay…
Cally, you seem quite hot and ‘plugged in’ to this dispute. You must have a reason for that. Do you mind if I ask what it is?
– P
Peter –
I will not be withdrawing my complaint to the Law Society regarding Madeleine Flannagan or Simon Buckingham in relation to this case.
That has nothing to do with being vindictive.
That has to with their behaviour in this matter which i believe amounted to serious misconduct and that i believe that one of the purposes of the Law Society is to give people like me – who have been bullied, harassed, and had constant attempts at intimidation throughout this whole process directed at me – protection.
What Madeleine Flannagan is forgetting to tell the world is that i made 3 attempts to put an end to this matter – attempts which she declined. I offered to do “whatever she wanted” if she would withdraw her legal proceedings against me and if we could all just agree to leave each other alone.
She replied threatening me that “God’s sword of vengeance was about to be mete out on me” …
I will never withdraw my complaint regarding her conduct in this matter. that is not vindictive. That is me attempting to ensure that she is never allowed to treat anyone else the way she treated me throughout this process.
After what her and Simon Buckingham put me through for two months – i hate to think what a person who is not as strong as i am might do. It nearly broke me.
J
Well, as I said in relation to your (in my view ill-advised) email to Mrs Flannagan’s employer:
…your decision, your action, your consequences.
– P
Cally,
I’ve removed your reply 12.23
No, thanks.
Perhaps read this: http://www.thepaepae.com/the-paradox-of-animosity/258/ especially the part about ‘Choosing your enemies carefully, for you will become like them.’
– P
Jacqui Sperling makes a statement on your blog disparaging and smearing the honesty and integrity of Madeline. That gets published and left to stand.
I present the context which is taken from a document presenting the entire facts complete with dates, urls, times, email headers – the sort of facts that are either indisputable or forged – and you say “no thanks”.
Wow. Criticism and comment removal for people who are mild in comparison to Jacqui Sperling, vague slap with a wet bus-ticket and all comments published for Jacqui Sperling with no removal and no editing even when someone leaves a comment demonstrating that she is lying and further smearing the reputation of another on your blog.
You’re walking a dangerous defamation tight rope as well as being biased and unfair.
Hi Cally,
Did you keep a copy of your 12.23 comment? If so, go and read it again. Personally, I think you’ve overstated its ‘context’-presenting value. You didn’t mention any “dates, urls, times, email headers” etc
It’s just another projectile in a war being waged by righteous people some of whom who wear a badge: ‘My abuse, bullying and character assassination is MILD compared to what Jackie said about my friends’.
If you want to make your points without wrapping them in what YOU call ‘bile’, by all means have another go. (Hint: perhaps you’d be better off not addressing it to Jacqueline. That seemed to wind you up a bit.)
– P
Anyone unhappy with a comment about themselves appearing on my blog is welcome to contact me to rectify the situation. I don’t bite.
I am really sorry for you Peter.
Anyone who dares not agree with every word that Madeleine Flannagan or [snip] Brown say will end up with 18 months of their wrath – like i have.
I don’t think you knew quite what you were getting yourself in to when you decided to write about your very reasoned thoughts on this judgement and the behaviour of all parties involved.
I predict they will harass you and threaten you with court action until you remove what they want removed from your blog.
Nasty comments on everything you write – no matter what it is about – will become the norm after disagreeing with them.
Welcome to my world for the past 18 months.
My God…that about says it all really.
Give me strength!
Peter, you are most assuredly a good man and I can see that you are trying to do good things here and for that you are to be congratulated.
But comments like that just do my head in, I will take my leave of this little psychodrama and wish everyone well and a positive outcome.
Psychodrama is a great description! 🙂
Cheers Dave. Thanks for your kind words. – P
[…] cop it now and then on that score. Recent discussion here with people whom I regard as reasonable and intelligent saw it suggested that a post I write […]
[…] filtering spam (thank you Akismet) and throwing out the garbage. Recently scrubone and I had a wee interchange over his desire to call someone ‘crazy’ and I’ve filtered a few other rants just […]
In light of all Sperlings’s posts (last count 59) vs Flanagan and Brown (0) it seems Judge Harvey’s comments…
“[194] Ms Sperling’s assumption of the role of victim in this mater in my view cannot be justified. One only has to look and critical tone of her blog postings to understand this. When criticised, it is my view that she tends to counter attack and rather than address the substance of the comment and will move the debate into a personal attack.”
…and…
[195] Throughout her affidavit she claims that she was not intending to harass Ms Brown or Ms Flannagan but with respect I find that that view is naive. The numerous postings and comments on her blog make it clear that she had a fixation with both Ms Brown and Ms Flannagan and was very willing to engage in counter attack if she thought whether with justification or not that they were making comments about her.
…are justified.
Peter, I was curious at your description of the truth as ‘this nasty ‘truth-telling’ campaign against Jacqueline’ in your response to scrubone. If truthful posts are considered ‘nasty’ what is your description of the unjustified and dishonest attacks Sperling repeatedly made against Brown and Flanagan both prior and subsequent to the case?
Clearly the Judge who has reviewed ALL the evidence is no fan of Sperlings.
From my now extensive reading on this case it seems to me that this blog post, your subsequent comments, and your censorship (and lack of it in Sperlings case) are grossly and unfairly biased toward Jacqui Sperling. Having, I assume, read in its entirety the same judgement I have I am very curious as to the reason for this?
Hello Zech8v16.
I think your (and/or scrubone’s?) alleged ‘score’ of posts (59 v 0) is absurd, misleading and unreliable. It massively misses the point on two main issues:
(1) it completely ignores the nasty (and I mean nasty) largely anonymous abuse and vitriol that’s been heavily sprayed at Jacqueline by all manner of what I described in the original post …
… in various other forums and venues, not limited to Jackie’s own blog comments streams. Hateful stuff.
I’m referring to people (not scrubone, bless him) anonymously bringing up Jackie’s previous life struggles and survival mechanisms as cudgels with which to attempt to beat her down, spit at her and discredit her.
Some have made the point that Jacqueline may be wrongly attributing some of the slings and arrows she’s been copping over the months to members or supporters of Team Brown-Flannagan, and that she may have other unassociated ‘enemies’ anonymously poking at her. That’s a fair point, but doesn’t obscure the (forgive me) vacuousness of the ’59 v 0′ mirage.
(2) scrubone’s unsound criteria (dodgy in my view) for actually measuring and ascribing the alleged plethora of anti-Brown-Flannagan posts to Jacqueline, viz: posts which
‘nasty hints’? ‘comments of spite’? Oh please. Truly, what a silly measurement.
That’s surely what Judge Harvey was saying when he referred to a level of ‘debate’ and ‘engagement’ being within the range experienced internet warriors like Madeleline should be expected to tolerate.
Did Jackie go too far with some of her comments and allegations [Update: details removed.] including undeniably hurtful and potentially professionally damaging personal slurs and allegations of lawyerly malfeasance? Yes, I think she did go too far.
I’ve said that I wish she hadn’t written some of her comments, that contact with someone’s employer is ‘pretty despicable’ and that I would rather she withdrew her Law Society complaints. I said that because it has an appearance of vindictiveness given the failure and dismissal of the application for restraint.
But I’m not in her shoes.
And consider also: (1) I ain’t Jackie’s keeper or advisor in any capacity … so my opinion, privately or publicly expressed, and $3.80 will get you a McD’s cappuccino. (2) One could see Jackie’s Law Society complaints as a pre-emptive strike against a possible defamation action — that’s pure speculation on my part. I haven’t discussed it with her.
I’ve talked above about the incredible stress of being involved in a civil lawsuit, especially one where one’s character is effectively on trial. I’m sympathetic to all parties in this dispute. Both ‘sides’ (I mean that broadly), it seems to me, are having trouble disengaging. That’s understandable — forgivable even — in my book. But unfortunate.
re your cavil about one-sided ‘censorship’ here at The Paepae, I have a short answer for you: You’re wrong about that. I’m almost unbearably light-handed and it’s not one-sided. (You are, of course, entitled to your opinion and I will publish it here if it’s civilly expressed.)
[Update: see note at end.]
Zech8v16, as someone who uses this OT verse as their ‘handle’ “These are the things which you should do: speak the truth to one another; judge with truth and judgment for peace in your gates” where ‘gates’ refers to ‘the place where court was held’ I hope it doesn’t offend you for me to suggest that you strike me as someone who really needs to ‘grok’ Judge Harvey’s decision.
It may not be perfect, in your eyes, but it is the judgement he delivered.
Best wishes, Peter
Update: I’m CLOSING comments on this thread, and I’ve moderated a few (including my own) to avoid the law of unintended consequences. I said right at the beginning that I didn’t want to re-litigate the case here.
I’m sorry, it’s just gotten too blistering. Some commenters, including but not just Jacqueline, are swinging pretty heavy clubs and people’s reputations are being potentially affected and genuine ‘distress’ caused by unsubstantiated allegations. That’s not what this blog is about. Enough is enough.
Feel free to email me (address here) if you have any queries or concerns or if you want to comment to me directly. No-one has threatened me.
– Peter 8 July 2012
Update: (Ha! Had the year wrong.)
[…] Harvey‘s presentation at Nethui underway now in Auckland. They directly touch on some of the recent discussion we’ve had on the topic of online free speech and harassment. This session looking at bad […]
[…] me explain. I’ve previously stated that in my view, contacting the employer of someone who’s differed with you online is […]
[…] application failed for a number of reasons, as canvassed in my post Implications of recent internet gagging attempt and in comments […]