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Has the Harrassment Act just swallowed the law of defamation?

By Steven | July 31, 2013

In a landmark judgment, a court has ordered a blogger to indefinitely remove more than a hundred posts and comments attacking the reputation of a lawyer, and not to write about her again.

The decision (Flannagan v Sperling DC Waitakere, 4 June 2013, Harvey DCJ, CIV 2012-090-986) may have opened up a cheap highway through the expensive labyrinth of defamation law. Why sue for defamation when you can get an injunction by showing that a publisher has harassed and distressed you instead? For one thing, you don’t need to worry about all those pesky defences such as truth and honest opinion.

The case was brought by lawyer Madeleine Flannagan who was repeatedly savaged online by Jacqui Sperling, a friend she fell out with. Sperling called her a liar, a perjurer, a prescription drug addict, a vexatious litigant, and a fraudster, and labelled her incompetent, abusive and “bonkers”. She also published private financial and medical details about Flannagan.

Although Sperling did not defend the proceeding, it should be said that there seems to be very little foundation for her accusations. Many of them may well have been defamatory.

But what’s interesting is that Judge David Harvey didn’t have to make that call. All he had to decide was whether the posts and comments amounted to a pattern of behaviour of “specified acts”, whether Flannagan reasonably suffered distress, and whether a restraining order was necessary and justified.

The Harrassment Act sets out a menu of “specified acts”. The relevant one here was “giving offensive material to a person or leaving it where it will be found by, given to, or brought to the attention of, that person”. Harvey J is surely right to conclude that repeated offensive blog posts aimed at someone can satisfy this limb. He said these were offensive because “they disclose personal and private information and include disparaging remarks about [Flannagan’s] morality, integrity, professional ability, intelligence and honesty that go beyond the robust exchange that one sees on the Internet.” He also held that she suffered the requisite distress and that a restraining order was necessary.

As the author of New Zealand’s leading text on internet law, Judge Harvey is better placed than most to comment about internet standards. And I don’t think it can be said that he was a pushover here. He had denied Flannagan’s earlier Harrassment Act application against Sperling, in part because Flannagan had engaged with Sperling online, and had herself gone looking for Sperling’s derogatory comments.Still, there is no getting away from the fact that Judge Harvey’s findings of offensiveness and distress revolve crucially around the damage to Flannagan’s reputation, which he mentions repeatedly. He also notes the extra harm done in an online context in the age of Google.

Judge Harvey recognises that Flannagan’s harms “could be remedied by defamation proceedings” but says they fall under the Harrassment Act too, and that’s all he has to look at. That’s true. But Sperling had a defence if she could show she was acting for a lawful purpose (s17). At least one judge has held that this requires an examination of the law of defamation to see whether a defence of truth or honest opinion might be available, and warned that harrassment law should not be used to undermine the high threshold for an injunction in defamation cases: B v Reardon [2000] DCR 575. As noted, Sperling didn’t advance any defence.

But I couldn’t help but notice the plethora of issues that this case would have raised in a defamation context. Hmmm, I thought, some of those statements look like they might be protected by honest opinion.

And: I’m not sure there’s a clear defamatory meaning for one or two others.

And: isn’t there a case that one or two of those allegations might attract a qualified privilege defence?

And: should we be troubled by the fact that the judge doesn’t have to make a finding that these harassing smears are untrue?

Judge Harvey knows the New Zealand Bill of Rights needs to be factored in. He assures us he has “weighed each post and considered whether, in terms of content and the competing interests of the parties, the removal of the post would amount to a justifiable limitation upon Ms Sperling’s free expression rights.” But he gives us little sense of how that justification process was conducted, except in his analysis of the appropriate duration of his takedown order. And that takedown order is a whopper: not only does it order Sperling to remove dozens of posts unless and until the court permits reinstatement, it also forbids her from directly or indirectly mentioning Flannagan or her family on any website she moderates. That seems to prevent her from discussing Judge Harvey’s decision, for example.

This is a long way from the courts’ great reluctance to grant injunctions affecting free speech in most other contexts.

But there is something to be said for that. The law of defamation is byzantine. It would not offer most people an easy remedy here. There’s much evidence that Sperling’s posts were malicious and harmful, and they are now banned. Sperling could have raised arguments in her defence, but didn’t. She has not been forced to pay damages. She can still raise her concerns in other fora. These applications aren’t simply rubber stamped, and the judge clearly gave close attention to the justifiability of the order. An appeal is available.

In fact, this is not unlike the cyber-bullying regime the Law Commission recommended, recently accepted by the government. The grounds for take-down orders under the Commission’s proposal include the publication of false allegations causing significant personal harm – though this requires a consideration of a range of contextual factors such as the level of offensiveness and harm, the purpose of the post, its subject matter, any public interest in it, and the vulnerability of the complainant.

Madeleine Flannagan may well still have got herself a takedown order under this procedure. But I think it is helpful to require judges to consider those wider factors first.

Topics: Defamation, Harassment Act | 38 Comments »

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