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To die like a blog

By Steven | April 19, 2008

Poneke is reporting that blogger HotTopic has withdrawn a post criticising the Listener and its editor after receiving a (presumably defamation) threat from the magazine’s lawyers.

In its place, there’s a fullsome correction and apology (which looks to have been drafted by said lawyers).

In the comments section of the correction and apology, someone has helpfully posted a link to a copy of HotTopic’s original post. Don’t you just love the internet? On the off-chance that the link is removed in the near future, let me take the liberty of reproducing it here. By all means, pay a visit, and encourage others to do likewise. I hope that the post receives exponentially greater attention as a result of this legal threat.

I don’t say that because I’m a free speech absolutist, or because I think the internet ought to be a law-free zone. In general, I think people who defame others online deserve all they get. I doubt this is the first time internet material has been removed in NZ as a result of a legal threat, and I’m sure it won’t be the last. Nope, I object to this because I think the Listener has used a tenuous legal claim to bully a blogger into retracting some moderate and reasonable criticisms. I don’t like it when anyone does this, but it’s particularly ugly when the heavies are acting for the media.

Some context: HotTopic - a serious blog about global warming - questioned the Listener’s removal of Dave Hansford as its Ecologic columnist. The blogger wondered whether Hansford’s removal had anything to do with his recent column criticising climate change sceptics. The post is largely a model of fairness. It sets out the background facts. It raises questions rather than making allegations. It even allows that the Listener’s editor may have made the change for other reasons. It plainly expresses comment. Readers can judge for themselves what to think. Bloody hell: how many blog posts merit that accolade? (For my part, I doubt Hansford was removed because of the column. The blog post is temperate enough that others have reached that view too).

Those familiar with the laws of defamation will see where I’m going. It looks to me as if there’s an honest opinion defence available here. The law lets people air their opinions, as long as they’re clearly expressed as opinions, honestly held, and based on facts accurately set out or referred to. Those elements seem to be present. (A caveat: I don’t know whether there were significant inaccuracies in the post, and there’s an interesting legal question about whether facts can be said to be accurate if something important is left out. I’d be happy to include any comment or explanation from the Listener here if it likes.)

One bit of the post looks a bit dodgy to me. Although the rest of the post meticulously raises issues rather than making allegations, there’s a passage that says:

The Listener, in caving into their demands, has acted shamefully.

That should be changed to read:

If the Listener has caved into their demands, it has acted shamefully.

In context, though, reasonable readers can easily tell that’s what the blogger was saying.

There are other potential defences. One is truth. HotTopic wouldn’t have to prove that the Listener did indeed cave into pressure, I think. The sting of the article is less than that: it’s that there are reasonable grounds to suspect that it caved in to pressure. That’s an easier thing to prove (though not a gimme). Qualified privilege is also a possible defence, though it would have been wise for the blogger to seek and include comment from the Listener before publishing the post. (Well, if bloggers want to be taken seriously as commentators, then arguably they should be held to the same standards of journalistic responsibility).

The correction and apology looks ham-fisted to me. It even includes a retraction of things that weren’t even in the post.

The proper response would have been a one-line letter politely telling the Listener to sit on its thumb. I doubt that any further action would have been taken. But bloggers, and those who host their blogs, can’t always be that brave. That’s what makes leaning on assertions of legal rights in situations like this reprehensible, I think. I would have been much more persuaded by a thoughtful and factual response from the Listener’s editor on the blog itself setting out the magazine’s version of the story. It would have been much cheaper. And much more in keeping with the Listener’s commitment to open inquiry. And it wouldn’t have produced what’s likely to be an explosion of interest in the criticisms…

Topics: Defamation, Internet issues, Media ethics |

5 Responses to “To die like a blog”

  1. Who breaks a butterfly upon a wheel? : Hot Topic · Global warming and the future of New Zealand Says:
    April 21st, 2008 at 3:05 pm

    […] Media Law Journal, Poneke (first, second, third), Hard News, Kiwiblog (first, second), No Right Turn, Deltoid (first, second, third), Audent (first, second), Southern Dave, Barista, Tim Jones, from the morgue. If you come across any more, stick ‘em in the comments, and I’ll promote them to the post. […]

  2. Paul Williams Says:
    April 22nd, 2008 at 1:25 pm

    Excellent article Steven. I imagine its very difficult for bloggers to withstand the pressure of legal threats, even if their writing is moderate and they have some legal background. The risk of an expensive and distracting defamation action is probably more than most are prepared to withstand. However, I’m thankful, that in this instance at least, you’ve lent your support to HotTopic who seem to be have been poorly treated.

  3. Stirling: we have principles except when we don’t « International Journal of Inactivism Says:
    April 28th, 2008 at 9:40 pm

    […] is quite arguably false, according to NZ media lawyer Steven Price. Anyway, at 4′ […]

  4. solon Says:
    September 9th, 2008 at 9:06 pm

    I slag off the media regularly as a matter of priciple. They are hothouse flowers and have an overweening sense of their own importance and their intelligence which is entirley unfounded. I act on the principle that they cant get blood out of astone and do they really want to go into bat against someone who is prepared to go for the jugular and make them stand up as human beings and be counted.

  5. The Listener against free speech, part 2 – Deltoid Says:
    October 27th, 2012 at 5:01 am

    […] Steven Price, who specialises in media law, comments on the Listener‘s use of legal threats to silence a […]

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