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SST sends blogger a defamation nastrygram
By Steven | February 11, 2011
The Sunday Star-Times has sent a legal letter warning Brian Edwards about his post about its reporting on Amanda Hotchin. The SST quoted her saying:
We don’t have to justify where we get our money from or what it is spent on to anyone. I don’t care what anyone says.
Brian Edwards weighed in with a blog criticising Hotchin.
But Hotchin denied saying those words. She’s in a stoush with the SST over it. She sent the SST and Edwards affidavits from people she said were witnesses to her conversation with the SST’s journalist and supported her account of what happened.
In turn, Edwards blogged about that.
Now, Edwards says he’s received a threat from the SST’s lawyers demanding that he remove the post because it is “false and defamatory”. (The letter, as they tend to be, is labelled “not for publication: confidential to the recipient”).
Standard caveat: I haven’t seen the whole letter from the SST, or read all of the comment to Edwards’ post on the affidavits, or had access to the affidavits themselves. Obviously, I don’t know what happened between Hotchin and the journalist. Still, I think I can say something about the law here.
What about that “not for publication” line? Has Edwards committed a breach of confidence?
Well, it’s arguable. The main test is whether it was imparted in circumstances importing an obligation of confidentiality. On the one hand, the letter expressly demands confidentiality. On the other, I’m not sure whether a court would accept that the circumstances of the imparting of the information were such as to bind Edwards to the confidentiality.
Yes, it’s standard practice for these sorts of threats to include a “not-for-publication” line. But it’s not uncommon for recipients to publicise the threat anyway, and I’m not aware of any threat recipient being sued for breach of confidence for publishing the threatening letter. In some cases, there may also be public interest defence.
So it would be an interesting question for a court, but it would be a foolish lawyer who advised a client that asserting confidentiality like this is (a) legally watertight and (b) sure to be respected by the recipient. Some lawyers I’ve discussed this with admit that it’s a bit of a try-on.
Those dastardly lawyers!
Can we please bear in mind that lawyers act on instructions from their clients? If anyone’s being a bully here, it’s the SST. For all we know, Izard Weston may have strongly urged against sending the letter, or against sending it in those terms. However, they are ethically obliged to follow their clients’ instructions.
Still, they must take some responsibility for the civility of the letter, and can be criticised if the legal arguments make no sense.
Those dastardly journalists!
It really is an unedifying spectacle when a media organisation tries to shut someone up using legal threats, especially when (as here, I think) the case is not open and shut. I think journalists should take this sort of thing on the chin wherever possible. They should engage in debate instead of threats. They of all people should be aware of the dangers of the blunderbuss that is our defamation law. If nothing else they should be aware of the PR fiasco that’s likely to follow when a blogger is threatened by a big media organisation.
Is it defamatory?
The SST are adamant that is it. Brian Edwards is equally adamant that there was nothing defamatory in his post, which didn’t take sides about what was said.
I agree with Edwards that his post was very fair and balanced – as far as I can tell. Not having seen the affidavits, I don’t know whether they contain striking inconsistencies, obvious gaps, or other problems that he doesn’t discuss. More subtly, it’s hard to tell how his agreement not to publish the identities of the deponents hampers the objectivity of the whole account. I note the SST claims that Edwards could have interrogated the content of the affidavits more critically. Still, I’m inclined to trust Edwards about his summary, and he’s been open with us about the confidentiality restrictions he’s under.
But a fair account may still be a defamatory one. The blog quotes Hotchin saying the quote was “pure fabrication”. That’s plainly a defamatory accusation. It’s also a defamation to re-publish someone else’s defamatory remark. The whole of the post, read in context, probably ameliorates this accusation to some degree. But at the end of the day, I think the post suggests that there’s reasonable cause to suspect that the SST made up its quote. That’s a watered-down accusation. But it’s still a defamatory one.
Is there a defence? Quite possibly. For one thing, it may be true. If I’m right about the meaning to be attributed to the post, Edwards would only need to show that the affidavits provided reasonable grounds for suspecting that the SST journalist had invented the quote. That may be a home run. (Or if, as the SST suggest, his summary of the affidavits was selective and credulous – or if the affidavits themselves contain inaccuracies, maybe not).
For another, there may be a defence of honest opinion. It’s often hard to separate out fact and comment. And it seems that the SST didn’t identify the particular parts of the post it alleges are defamatory. Anyway, the post has the flavour of comment. It strikes me as drawing a careful distinction between fact and supposition. It is surely genuine. There may be an issue about whether it is sufficiently based on a foundation of fact, depending on what the affidavits say.
For yet another, there’s a possible defence of qualified privilege (essentially, responsible reporting in the public interest). This would require an expansion of this defence, but it’s in flux and cannot be discounted.
The presence of tenable defences really should have meant the SST shouldn’t have sent this threat, I think.
What’s this “we can’t engage” business?
The SST says it is “unwilling and unable” to engage about the issues in a public forum, as this would be “inappropriate”. This sounds like tosh to me. They admit that Hotchin hasn’t even filed proceedings. Were they given the affidavits on condition of confidentiality? If so, why not say so? If not, why not discuss them?
If, for example, the reporter does have a recording of the conversation, or even written notes, there is nothing at all to stop the SST revealing that publicly.
How serious is the SST?
The letter doesn’t seem to contain an express threat to sue. As a defamation lawyer, I am much more likely to sit up and take notice if a letter says: “If you do not remove this content immediately we have instructions to file proceedings without further notice”. A second-level threat is pitched more like: “If you do not remove this content our client reserves the right to issue proceedings without further notice”. Again, I haven’t seen the whole letter, but “our client is minded to take action” isn’t a first-order threat. My guess is that the SST will not sue over this.
Topics: Breach of confidence, Defamation, Media ethics | Comments Off on SST sends blogger a defamation nastrygram