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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 (The letter, as they tend to be, is labelled “not for publication: confidential to the recipient”).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What about that “not for publication” line?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 | 9 Comments »

9 Responses to “SST sends blogger a defamation nastrygram”

  1. Steve Parkes Says:
    February 11th, 2011 at 4:35 pm

    “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.”

    Not meaning to be a troublemaker, but, does that mean you could potentially be sued for defamation?

  2. Steven Says:
    February 11th, 2011 at 4:45 pm


    But I think I have slightly stronger defences even than Edwards (for example, I may have a better claim to qualified privilege) and to some extent I’m supporting the SST’s position that there’s a defamation issue here, so they may have less incentive to go after me.

    I could also be sued by Hotchin for re-publishing the alleged misquote. But I also think that’s unlikely. Tricky business, defamation.

  3. Steven Says:
    February 11th, 2011 at 4:48 pm

    Oh, and I could also be sued by the SST’s lawyer for suggesting that one of her statements was tosh.

    And probably by Brian Edwards for casting aspersions on his legal acumen and writing about the possibility that he could have been more critical of the affidavits.

  4. Steve Parkes Says:
    February 11th, 2011 at 9:11 pm

    Yes, but can *I* sue you? And what are you worth?

    Seriously, though, those last two in particular surely amount to nothing more than criticism, and relatively mild criticism at that (especially of Edwards). If calling something someone says ‘tosh’, and suggesting that someone could have done something better than they maybe did can get you sued for defamation … well, about half the stuff I’ve ever put on the net could see me in court.

  5. Steven Says:
    February 12th, 2011 at 8:46 am

    Right. And there you have one of the big problems with defamation law. Even mild criticism, depending on how it’s phrased, can be defamatory.

    In general, almost anyone can sue anyone for anything. For a whole range of reasons, though (lack of advice, lack of money, risk, stress, need to preserve relationship, penniless defendant, etc), it’s pretty rare for anyone to sue in defamation. As discussed, there are also a range of defences available, though those can be rather uncertain too.

  6. Merv Says:
    February 14th, 2011 at 3:50 pm

    I couldn’t see anything in the blog, that could be considered “defamatory”. Unflattering, maybe. You reckon, it was a “try-on” by the SS-T?

  7. Steven Says:
    February 14th, 2011 at 3:59 pm

    So Merv, if someone accused you of fabricating an unflattering quote, you wouldn’t find that defamatory? I think the SST genuinely thought it had been defamed. Besides, why would it think a journalist as seasoned as Brian Edwards would cave in to threat that wasn’t based on the law?

    Defamation is a legal term of art. Feel free to argue that I’ve misapplied it. But I’d like to hear your argument.

  8. Merv Says:
    February 14th, 2011 at 5:17 pm

    For a defamation case to succeed, the plaintiff has to show that his “good name” has been besmirched and has suffered injury to his reputation. And that the defendant made the remark, wilfully; and it was calculated to cause him harm, ridicule, etc.

    The core of this issue, is the quote — that is, what Amanda said. Which was enclosed in quotation-marks. You can argue — that anything which is at variance to the quote, is a “fabrication”; to some degree or another. Think about it: our intrepid wanderer takes an 8-plus hour to get to that Hawaiian idyll. Rather than being invited on to the Hotchins’ terrace, to partake in a main tai or a “cold one”, he’s given the unceremonious bum’s rush. Before he’s even had the chance to say, “Howdy-doody”. Our boy is fair-on, bristling with pique. Travelled all that way for what appears to be for nothing to show his Fairfax masters. He’s pissed, and it’s not from the Hotchins’ conviviality, either.

    BE has asked, not unreasonably, for evidence as to said remark. The S-ST can’t — or won’t — offer up anything that’s what be said, already. All the blog site is engaged in is conjecture and speculation. The S-ST’s article was written to appeal to the lowest common denominator in readers’ taste. Those further up the scale, where the intellectual air is a little more rarefied, saw it for what it was. Which isn’t necessarily bad. Or wrong.

    BTW those affidavits, if they’re from the injured party/relations and/or the hired Hawaiian help, aren’t worth anything.

  9. Steven Says:
    February 14th, 2011 at 5:32 pm

    I can agree with a lot of what you say in general.

    But your definition of defamation is wrong. The plaintiff doesn’t have to show injury to reputation, or wilfulness by the defendant. None of the legal tests mention “good name” or besmirching, though one mentions the possibility of ridicule. I don’t know where you’re getting your information from. I’m really not inclined to think you know what you’re talking about when it comes to the law of defamation, which is what this post is about.


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