Cameron Slater makes valuable contribution to blog defamation jurisprudence

Written By: - Date published: 9:04 am, October 5th, 2017 - 55 comments
Categories: blogs, Deep stuff, Dirty Politics, making shit up, Media, the praiseworthy and the pitiful, you couldn't make this shit up - Tags: ,

Spare a thought for poor Cameron Slater.

He is currently involved in a High Court defamation case.  Three medical researchers, Doug Sellman, Boyd Swinburn and Shane Bradbook are suing Slater, Carrick Graham, former National front bencher Katherine Rich and the New Zealand Food and Grocery Council for comments made on Slater’s website.

The details of the alleged defamatory comments have been suppressed but it has been reported that Slater has been alleging that Sellman Swinburn and Bradbook are “troughers” “rorters” and have been “ripping off” the public purse.  Sellman and co are public health professionals engaged in research concerning the adverse effects that too much sugar is having on our diets.  For previously unknown reasons this attracted Slater’s attention and he made all sorts of allegations about their competence and motivation in a number of blog posts.

The book Dirty Politics suggested that this was no random drive by smear but a professional hit paid for by Rich and the Food and Grocery Council.

A recent hearing involved an application by the defendants to strike claim out.  Four different issues were raised:

  1. Were the proceedings filed out of time.  There is a two year limitation period for defamation and the defendants said that the relevant date was the date the post was published, even though the posts remain visible on the site.
  2. Should they be struck out as an abuse of process because there has been no substantial or significant tort and the cost of the proceeding is disproportionate to its benefit. In other words should the plaintiffs just toughen up.
  3. Should they be struck out because the publications involved vigorous discussion of public issues.
  4. Were the claims against Rich and the New Zealand Grocery Council self-evidently speculative or false or that procuring defamation in the way alleged is incapable of founding legal liability.

But in a detailed decision Judge Palmer has declined to strike out the proceedings.

The limitation period argument failed and this is a valuable lesson for blog sites.  If something may be defamatory take it down.  The limitation clock then starts ticking.  The Judge said:

A statement is considered to be published to the person by whom it is read or heard each time it is read or heard. The law presumes it is read, and damage to reputation occurs, on production to the public. In relation to a blog, that is while it is posted. The presumption is rebuttable but has not been rebutted here. So I do not strike out the claims as being time-barred.

I take it if Slater could show that the posts had not been read for a number of years then he may have been able to argue that the presumption should be rebutted.

The second issue, that the Plaintiffs should just toughen up also received short shrift.  From the Judgment:

I do consider the law of defamation includes a requirement for a minimum threshold of harm to reputation. The law presumes harm to reputation to have occurred on publication of a defamation. But a defendant may rebut the presumption by showing any harm to reputation is less than minor. I apply that threshold to the meanings pleaded here as outlined in the annex to this judgment.

The details have been suppressed but the Judge struck out some of the pleaded meanings in whole or in part on the basis the threshold of harm to reputation had not been reached.

The third issue also received short shrift.  The Judge said:

Blog posts are subject to the same legal tests as other media though they must be read in context. The law of defamation must not be applied so enthusiastically as to chill genuine political and policy debate. Those who engage in public political and policy debate must expect robust public responses. But defendants cannot expect to make false unsubstantiated personal attacks with legal impunity. In particular, here, the terms “trougher”, “rorter” and “ripping off” have pejorative connotations of wrongdoing in the use of funding that are capable of being defamatory.

So if you are going to engage in attack blogging argue the issue and don’t make claims about the motivation.  Unless there is solid proof.

The Judge also refused to let Rich and the New Zealand Grocery Council off the hook.  From the Judgment:

I do not consider the pleadings against Ms Rich and the NZFGC are self-evidently speculative or false, on the basis of the little information before me. Neither do I strike out the claim against them on the basis that procuring defamation in the way alleged is incapable of founding legal liability. Procuring defamation can attract liability. The allegations will need to be considered at trial.

Interestingly Dirty Politics was offered up as evidence of the link between Rich and the NZFGC and the posts.  From the judgment:

[100] The plaintiffs say chapter seven of Dirty Politics and Mr Slater’s leaked emails support a number of inferences:

(a) Each of the plaintiffs was engaged in research or advocacy that was contrary to the interests of FGC and its members. FGC and its environment (Nelson, Craig Potton Publishing, 2014). Citations to the affidavit omitted. members stood to benefit from publications that attacked the plaintiffs and damaged their reputations.

(b) Mr Graham was a public relations professional. He and FCL must have been paid by their clients for the services they provided, including writing the Blog Posts, paying Mr Slater to publish them, and posting the Comments. Mr Graham and FCL would not have been working for free.

(c) Ms Rich and FGC were clients of Mr Graham and FCL’s. Indeed, Ms Rich and FGC have specifically confirmed in correspondence that FGC paid FCL for (unspecified) services and attendances on a variety of issues.

(d) Ms Rich and FGC would have known what services their agents Mr Graham and FCL were carrying out on their behalf, including writing and publishing the Blog Posts. As such, they would have procured or authorised those publications.

[101] I have examined chapter seven of Dirty Politics and Mr Slater’s leaked emails, as exhibited to the January 2017 affidavit. I agree Dirty Politics makes the allegations the plaintiffs say, above, it does. I agree Dirty Politics and the emails could support the inferences the plaintiffs say, above, they do. The most tenuous part of the plaintiffs’ pleadings, on the basis of the information before me, is whether there is a link between Ms Rich and the NZFGC and Dr Swinburn and Mr Bradbrook. But, on balance, I consider the allegations in Dirty Politics are capable of supporting an inference they were.

The Judge did say that he was not finding that these particular allegations are correct or that the causes of action will succeed.  That is a matter to sort out at the trial.

And as a friendly warning do not speculate on what exactly was said or how it will work out in Court.  The Judge has made an order that the contents of the allegations in pleadings should not be publicly reported.

55 comments on “Cameron Slater makes valuable contribution to blog defamation jurisprudence ”

  • Comments are now closed

  1. Steve Alfreds 1
    5 October 2017 at 9:16 am

    Good things come to those who wait. Maybe he needs to do a refresher course on NZ media law and defamation.

  2. marty mars 2
    5 October 2017 at 9:20 am

    I remember all this happening. I am pleased the case continues.

  3. james 3
    5 October 2017 at 9:38 am

    Good to see the wheels of justice moving – even if slowly.

    If he did what he is accused of – they should be held to account.

    • tracey 3.1
      5 October 2017 at 11:44 am

      Like when Collins breach the privacy act leading to a death threat against an innocent man and here she is on a Cabinet Salary and went on to be Minister of Corrections and now Revenue

  4. tc 4
    5 October 2017 at 10:23 am

    Run baby run…..the longer the better.

  5. red-blooded 5
    5 October 2017 at 10:29 am

    Whale oil beef hooked! It’s good to see that Whale Oil is finally being (f)hooked for what was a really nasty, malign, targeted campaign against people who were trying to do a good thing.

  6. Adrian Thornton 6
    5 October 2017 at 10:52 am

    I love that photo…I fuckin’ love it.

    • edgil 6.1
      5 October 2017 at 4:39 pm

      That photo is iconic; just like the Ali knockout of Liston shot.
      “First minute, first round”
      Jesse Ryder; a great citizen of this fine land.

      • Mickey Boyle 6.1.1
        5 October 2017 at 4:54 pm

        Think what you want, but he put his body on the line for a good charity, he has my respect for that at least.

        • One Anonymous Bloke 6.1.1.1
          5 October 2017 at 5:52 pm

          Are you familiar with the fact that charity is regarded as an obscenity by many? Would you like to know why?

          • Mickey Boyle 6.1.1.1.1
            5 October 2017 at 6:12 pm

            No.

            • One Anonymous Bloke 6.1.1.1.1.1
              5 October 2017 at 7:44 pm

              Stay ignorant then.

              • Mickey Boyle …
                5 October 2017 at 7:54 pm

                Oh sorry, I didnt realize you were a “Man of importance”, how dare I not listen to a full explanation, please enlighten me with your knowledge, im sure I will find it appealing and full of facts…..

          • Baba Yaga 6.1.1.1.2
            5 October 2017 at 9:34 pm

            The charity was [deleted]. Why would anyone consider that an obscenity? Unlike Mickey, I genuinely am curious.

            [lprent: That relates to an outstanding defamation case where Cameron Slater was made allegations about the association between the person he was defaming and that organisation. In my opinion he was probably just doing his usual at that time and simply lying. However I’m not interested in getting involved in any of Cameron Salters’s large numbers of very stupid cases that he is defending.

            Banned for 1 month for apparently trying to drag us into on ongoing defamation case. ]

            • McFlock 6.1.1.1.2.1
              5 October 2017 at 9:36 pm

              In your own words, what sort of things do [deleted] do?

              • Baba Yaga …
                5 October 2017 at 9:38 pm

                I’m wanting to know why [deleted] could be considered an obscenity. Not what it does, but the charity itself. That’s the question I was asking. If you know, just spell it out.

                • McFlock …
                  5 October 2017 at 9:41 pm

                  Once I know pretty much what they do, I’ll be able to put it into very small words for you.

                  What do they do?

                  • Baba Yaga …
                    5 October 2017 at 9:44 pm

                    Not interested in playing games. I asked a simple question. I’ll wait for an answer from the author of the original post.

                    • McFlock …
                      5 October 2017 at 9:53 pm

                      Meh. I thought they were a cancer thing, but apparently not: “[deleted]“.

                      A very worthy cause indeed.

                      The obscenity is that they even have to exist. [deleted] People do longer than that for fun, ffs.

                      The existence of private charity is an obscenity. It’s like the community-minded soul who puts a bucket of gravel in a pot-holed road, or picks up litter from the road 50 yards either side of their house and pays for a private wheelie bin. Their acts are good, but are only needed because society has neglected essential services.

                      That’s the obscenity of charity.

                    • Baba Yaga …
                      5 October 2017 at 9:58 pm

                      “The obscenity is that they even have to exist. ”

                      That’s utter nonsense. And it’s shallow. All societies have people in need. Charity is a private response to that need. What’s wrong with that?

                      “Their acts are good, but are only needed because society has neglected essential services.”

                      Aren’t we all ‘society’? Can’t we all play a part at a private level if we wish?

                    • McFlock …
                      5 October 2017 at 10:04 pm

                      If all societies jumped off a cliff, would you do it too?

                      It’s a private response to a need that should not exist. There should be systems in place to address need. Children shouldn’t have to rely on the caprice of donors in order to go to school with food in their bellies, for crying out loud.

                      Do you really not see any problem with that, just because other societies have kids going hungry, too?

                    • One Anonymous Bloke …
                      6 October 2017 at 11:59 am

                      While you’re enjoying your month break, contemplate the word “Dickensian”.

                    • McFlock …
                      6 October 2017 at 1:42 pm

                      great.
                      Now I need an indepth knowledge of however many court cases are going on relating to a particular individual, or avoid using pronouns altogether. What a tangled web they wove…

      • Adrian Thornton 6.1.2
        5 October 2017 at 9:19 pm

        @edgil, Well except Liston was a great boxer, and although I am a big Ali fan, I still think he (Ali) was lucky that the 2 fight was postponed, and Liston lost his peak condition.

  7. RedLogix 7
    5 October 2017 at 11:26 am

    But defendants cannot expect to make false unsubstantiated personal attacks with legal impunity.

    mmm …. possibly quite a LOT of deleting might have to happen.

    • lprent 7.1
      5 October 2017 at 12:56 pm

      Agreed. But Whaleoil always used to be a complete shit hole for violating legalities. And it has already had a whole lot of revising of the posts and comments for various court cases.

      But usually not here after they get through the initial moderation sweeps. In the last decade I have revised a few posts for humanitarian reasons and a few tens of defamatory comments that the moderation missed and were drawn to my attention within days or weeks.

      We’re pretty careful about distinguishing between fact and opinion – which Whaleoil didn’t used to distinguish between at all most of the time.

      We’re also pretty careful about distinguishing between people who are in public life and part of the public debate; politicians, political candidates, bloggers, journalists, senior public servants at the policy or governing level, etc – Whaleoil wasn’t.

      We don’t take payment for anything on this site. Hell, I promise nothing except privacy and that any money donated will go to keeping the site hardware and software running – see the donations page where I say:-

      We provide no acknowledgement of people who contribute because that would violate our standards on privacy. If you make a contribution then only the sysop will know, and he doesn’t tell anyone anything that he considers should be private.

      and I don’t write anything for pay apart from code and documentation for code. It is a struggle to find time to have fun writing my fun rants carefully considered opinions.

      We also tend to ‘beat up’ hard on people who leave comments that are defamatory or criminal. It tends to leave an impression that reduces the probability of subsequent work to educate the perps.

      But we’re also pretty nice people on this site most of the time (apart from me of course).

      • RedLogix 7.1.1
        5 October 2017 at 6:03 pm

        Thanks for that. I’ve often looked at many comments over the years and wondered if they might come back to bite us.

        It’s usually easy to spot something criminal, but TBH I’ve seen a lot of material, particularly directed towards public figures on the right which leave me unhappy from a defamation perspective. No-one wants to chill robust debate, but frankly I think we’re too lenient on ‘pointless abuse’ and ‘personal attacks just because this is the internet and I believe I can get away with it without getting my face renovated’.

        Am I safe in assuming that when something potentially defamatory is directed at someone with a pseudonym, that because it’s not directed at a ‘real person’ this also offers some level of protection? Or is this a faulty assumption?

        • Thinkerr 7.1.1.1
          5 October 2017 at 9:16 pm

          You just need to confirm fact from opinion.

          If you knew and had proof that Joe Bloggs stole money from Jill Blaine, then you can call him a thief.

          But, if it is only your opnion he stole money, then say “In my opinion…”. Everyone’s entitled to an opinion, and if you say so, you’re not saying something is fact when it isnt.

          That’s my opinion, anyway 🙂

          • lprent 7.1.1.1.1
            6 October 2017 at 1:24 am

            Ah no. You’d also have to show at least in part why that is your opinion.

            Otherwise (for instance) I could claim in my opinion that you (giving your name) were deliberately infecting pigs with HIV because you were a bastard male.

            There are a series of facts in that ‘opinion’ that are being asserted and that are verifiable and need to have some instantiation, basis of fact or even a source for my ‘opinion’. I have absolutely no idea of your gender, your specific birth status, your HIV status, if you had access to pigs, or were deliberately infecting them. Of course there is an implied suggestion in there that you may be a pigfucker.

            Around here that I would give that paragraph an abrupt edit, and a ban.

            And of course I do say things like that, usually when moderating people making defamatory statements. But I do it for effect by speculating in exactly the manner of the person I’m moderating what they are like inventing ‘facts’ as required. Except I increase the ‘opinion’ by several orders of magnitude to demonstrate how I ‘see’ their comment. I call that ‘net education’.

        • lprent 7.1.1.2
          6 October 2017 at 1:10 am

          From the decision (nice document) my emphasis..

          [4] Third, a statement is defamatory if it causes a reasonable person reading or hearing it to think worse of the person concerned, in a more than minor way. Blog posts are subject to the same legal tests as other media though they must be read in context. The law of defamation must not be applied so enthusiastically as to chill genuine political and policy debate. Those who engage in public political and policy debate must expect robust public responses. But defendants cannot expect to make false unsubstantiated personal attacks with legal impunity. ….

          Which is pretty much what we run, except we’re usually somewhat more restrictive.

          Before we allow potentially defamatory statements, it usually has to be someone involved in the expression of opinions in public debate about politics or policy.

          So (for instance), family are usually off the table. People simply reporting facts like researchers usually are as well. You can argue about how the facts were collected, methodology, things that are missing, funding sources etc, but you can’t directly attack the authors.

          Of course if there is a pattern of behaviour and probable bias over time – for instance the “Taxpayers union” being a good example – then bringing those up and expressing speculation and opinions is entirely appropriate. That is a proper part of public debate, but ultimately I’d have to be prepared to defend that as being part of public debate and to justify why the trust allowed it.

          If someone asserts specific verifiable facts, then they are expected to be able to back them with something substantive, credible, and verifiable when they make the comment or post. Otherwise we’ll just kill that part of their comments or post and ban them for a long time. Somehow expressing them as an unsubstantiated opinion or as a speculation simply isn’t sufficient or strong enough for some people – so they lie. That means that pattern of behaviour gets chopped.

          As this case demonstrates, words are important. Calling someone a neo-liberal doesn’t indicate a criminal intent. But calling someone a ‘thief’ without context sure as hell is because there are large sections of the Crimes Act and Summary Offences Act related to crimes associated with that word. I really don’t care if they meant ‘a thief of the public attention’ if whoever made it didn’t make that absolutely clear.

          Similarly for some of the words like trougher, rorter as in this case or corrupt can carry particular meanings, and without clear context you’d have to assume that a good proportion of the people reading will take the worst possible connotation. As is often deliberately intended to happen. Especially, in my opinion, when Cameron Slater used them in his halcyon dirty days, the nuances of words were designed to dog whistle to his audiences whilst trying to have some plausible deniability.

          But as the judge in this decision points out; that with BORA with other legislation sections does as well, and a host of previous decisions on both legislation and common law; there is a balance between open public debate and the suppression of public debate using laws like defamation as a chilling effect.

          But ultimately, we decided when starting this site to have “robust debate” and that meant we tend towards the open public debate side where the words that were used mattered less than clearly stating why

          Am I safe in assuming that when something potentially defamatory is directed at someone with a pseudonym, that because it’s not directed at a ‘real person’ this also offers some level of protection? Or is this a faulty assumption?

          Generally safe according to previous legal decisions (most from the 20th), and especially the way that we operate here. It at least shows the intent to have less personal constraints and a freer debate. Of course if someone could show that their identity under the handle was well known and that the damage to the reputation was deliberate then it is a different story.

          However you will notice that I am very deliberately coy about confirming who people really outside of the guest posters are even if they are using ‘real names’.

          Just claiming that your name is ‘John Key’ or ‘Helen Kelly’ when it doesn’t look likely to me would usually result in a forced handle change on the basis of probable identity theft. There are only a few usually allowed, as much as anything else because we have to take extra care with and of them. Which adds to the moderating burden on a robust debate site.

    • taxicab 7.2
      5 October 2017 at 4:43 pm

      yesterday for a time Whaleoil had a front page with the message “the content you are seeking is not available ” there was no content at all , I guess they were sanitizing the site after the court determinations .

  8. tracey 8
    5 October 2017 at 11:41 am

    MS in a strike out application does not a Judge have to assume stuff pleaded as fact is true and then apply the legal test on that basis? Of my memory is correct, it means a prima facie case, at best, is confirmed but the veracity of the “facts” as pleaded by the Plaintiffs are as yet untested by the Court?

    • Frida 8.1
      5 October 2017 at 12:16 pm

      @tracey yes that’s exactly right. The statement of claim is taken as if true and the merits are then evaluated on that basis for strike out. The actual facts don’t need to be proven by the plaintiff until trial.

      The exception to this is if the statement of claim makes an allegation that is patently and demonstrably untrue the defendant can file an affidavit proving this. But that hardly ever happens.

      • tracey 8.1.1
        5 October 2017 at 12:22 pm

        Thanks Frida. It has been a long time. Mind you it going on to Court will ratchet up potential costs for both sides. I doubt these Plaintiffs will settle for anything but a strongly worded backdown and apology cos their reputations have been trashed.

        • Frida 8.1.1.1
          5 October 2017 at 12:24 pm

          @Tracey, agreed. Often an unsuccessful strike out does trigger a settlement by a plaintiff but in this case, the stakes would be high for the defendants for the reasons you mention!

          Couldn’t happen to a nicer bunch of people eh….!

    • mickysavage 8.2
      5 October 2017 at 1:14 pm

      in a strike out application does not a Judge have to assume stuff pleaded as fact is true and then apply the legal test on that basis?

      Generally yes he does Tracey and he mentions this in his judgment. The third and fourth defendants sought to try and challenge the case on the basis the evidence was untenable. The plaintiff replied by filing chapter 7 of Dirty Politics.

      • Chris 8.2.1
        5 October 2017 at 3:52 pm

        You’d think after DP the likes of Graham would’ve learned their lesson, but these people do it for living. It’s unbelievable.

        http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11899963

        • lprent 8.2.1.1
          5 October 2017 at 5:50 pm

          This was all prior to Dirty Politics getting released.

          Your link was in 2012.
          The case that is going through now was somewhere around 2013 (??)

        • weka 8.2.1.2
          5 October 2017 at 5:57 pm

          I’m guessing the lesson the smarter ones have learnt is how not to get caught.

        • Thinkerr 8.2.1.3
          5 October 2017 at 9:47 pm

          Time was, I believe, when this sort of thing was more tolerated – dare I say even accepted.

          Dirty Politics didn’t turn people’s heads overnight, but I think it acted as a guidebook for the uninitiated, who could then see these things for what they were, and how they impacted on people.

          As a boy, my father picked apples from a farmer’s tree on his way to the cinema. I think I can now confess to occasionally throwing jaffas at the screen in my own youth. In their own times, neither caused more than a telling off. Judged in retrospect, by the different standards of today, my father and I might well have been considered delinquent.

          The Whaloil site was getting awards when judged by pre-Dirty-Politics times. In post-Dirty-Politics times, the same material may be seen in a different light.

          During a golden age, Unwritten rules are broken, and I guess some forget that when the cycle turns, the standards become more conservative.

          • reason 8.2.1.3.1
            5 October 2017 at 11:39 pm

            Getting awards before the nasty dishonesty was exposed …..

            In the Golden shower age as delivered by Cam Slater ….

            A group piss from the Prime Minister down ….

            Rat Urine…. and bullshit.

  9. Michael who failed Civics 9
    5 October 2017 at 4:06 pm

    Slater’s rich mates will look after him. Evidently, Palmer J does not expect promotion under any government run by, or on behalf of, those mates.

    • mickysavage 9.1
      5 October 2017 at 4:14 pm

      I would not be surprised although he has been an exceptional academic and has a real quality pedigree.

  10. Eco maori 10
    5 October 2017 at 4:42 pm

    I looked at whale oil site could see it was run by a ______________ and closed the window lol

  11. Delia 11
    6 October 2017 at 12:33 am

    So how is that working for these people, most people have reduced sugar and are very aware of not overdoing their intake. So much for the smear campaign.