Let the courts decide

Written By: - Date published: 9:46 am, October 11th, 2011 - 59 comments
Categories: accountability, blogs, democracy under attack, democratic participation, human rights, john key, national, radio, suppression orders - Tags: ,

The threat of invoking defamation is a standard tactic to intimidate those who can’t afford the legals bills to shut their mouths. Such threats are sometimes known as strategic lawsuits against public participation or SLAPPS.

My understanding of Lange v. Atkinson (2000) and the qualified privilege afforded to political commentary that it enshrines, suggests there is no way a defamation case against Martyn Bradbury for his comments about John Key on RNZ’s Panel could be successful: considering Bradbury was invited on as a left-wing political commentator on a show that invites him to give a soliloquy on his openly left-wing opinions; and considering Bradbury’s comments were counter-balanced by critical comments from John Bishop and the ‘host’ Jim Mora immediately following Bradbury’s comments. (Comments that I personally thought were entirely justified and deserved considerably more serious on-air discussion than they received at the time or since. What’s so defamatory about asking “what a nasty little piece of work our Prime Minister is” anyway, given truth is a defence in such cases after all?)

But despite the gargantuan dual insults to free media speech and the independence of our state owned broadcasters that this SLAPP represents, we won’t see any legal challenges coming from APN, Fairfax or Mediaworks, or indeed RNZ or TVNZ. The former three because it doesn’t suit their commercial interests, that latter two because they are both already utterly cowed by their political masters.

So my question is would the blogosphere, political groups and those otherwise interested in the defence of free speech contribute to Bradbury’s legal fees if he was to call Key’s bluff and invite the PM to sue him? Or, should Key back down from that, then contribute to a case against RNZ for defaming Bradbury by suggesting he was guilty of defamation and therefore warranted banning. Perhaps unfair dismissal may also merit further investigation if a regular slot spanning 10 years could be said to be a contract?

It would help turn a broader public’s attention to what are fundamentally important issues for any democracy that cherishes free speech and political commentary – at a time when there are far few serious issues being otherwise addressed by the media. Who knows, it might even bring attention to the issues concerning Key’s appalling behaviour that Bradbury was actually trying to raise in the first place. Perhaps most importantly, it would be a strategic lawsuits of public participation. Hope would be a fine thing wouldn’t it?

If you want to let RNZ know how you feel about this political censorship, why not join those who are doing so on Facebook:
 
 
or by emailing CEO Peter Cavanagh: peter.cavanagh@radionz.co.nz

59 comments on “Let the courts decide ”

  • Comments are now closed

  1. Kaplan 1
    11 October 2011 at 10:03 am

    I pledge $200. You have my email and I’ll happily contribute if hope holds out and it is required.
    I’ve registered my displeasure with RNZ over this, but to date no direct reply. It stinks to high heaven. Where is the free speech coalition when you need them…

    • lprent 1.1
      11 October 2011 at 10:10 am

      Please people, say what you’d like to put up, but don’t provide details. If it does go ahead we’ll help set up something to get clean and anonymous donations.

      Bearing in mind National has a rather mean, nasty and outright vindictive and bullying streak under John Key, it’d pay not to be particularly public about it.

  2. lprent 2
    11 October 2011 at 10:08 am

    This is exactly the point. Anyone who has even glanced at the question of defamation law in in NZ after the 2000 court of appeal ruling on Lange vs Atkinson (and listened to Bradburys actual rant) knows that there isn’t a possibility of a successful defamation case arising from it. That is one of the risks involved in seeking and taking public office as the court of appeal made quite clear.

    The same cannot be said of a potential case by Bradbury against persons in RNZ or John Key (or his minders) if in fact he (ore they) did say that Bradbury’s comments were defamatory. Now the second part of a defamation case is to show that damage happened as a result of the defamation. It is quite clear that has in fact happened.

    I’d be up for taking a case against John Key and/or his minders and/or RNZ. Amongst other things the disclosures required by those would be quite fascinating in finding out how exactly and from whom John Houson got the information that John Key was considering launching a defamation action.

    • Tigger 2.1
      11 October 2011 at 10:58 am

      An email from an unnamed source perhaps?

    • ianmac 2.2
      11 October 2011 at 1:27 pm

      Had a reply to my email re Bomber from RNZ. see 22 on Open Mike. Included in the reply was “One of his comments was regarded as being potentially defamatory. The segment in question was removed from the Radio New Zealand website because it was considered to be potentially defamatory and Radio New Zealand has a duty to protect the organization against defamation proceedings. ” Wonder which one?
      Full text of the reply available if needed but sure that many received the same letter.

  3. queenstfarmer 3
    11 October 2011 at 10:17 am

    On what basis are you talking about “calling Key’s bluff”, when John Key hasn’t made any comment (let alone a bluff) on this at all? It is a bit bizzare to assert that John Key might “back down” from a threat he hasn’t made (besides, of course, unsubstantiated “rumours” from certain contributors here).

    This is a spat between Radio NZ and Bomber. Sounds like Bomber didn’t simply didn’t abide by the rules of his host, and that was that. If so, then it’s really no different to, say, abusing this website’s policies and getting banned.

    Having said that, I quite like Bomber’s style of commentary (when he sticks to the facts) and don’t want to see him lifetime banned, which is clearly OTT.

  4. mickysavage 4
    11 October 2011 at 10:33 am

    It may be possible for Bomber to apply for an administrative law review of the decision not to invite him back onto Mora’s show.

    Anderton and the coiffured one applied six years ago for an injunction requiring them to be included in the leaders’ debates that year. The application was successful.

    There are different Acts at play here but the same sort of argument could be advanced, that it is in the public interest for the left to be represented and that Bomber’s exclusion is against the public interest in that it will stifle debate and have a chilling effect on guests wanting to take the PM to task.

    The case is at http://blog.greens.org.nz/wp-content/TV3Judgement.pdf if anyone wants to have a read of it.

    • lprent 4.1
      11 October 2011 at 10:56 am

      That is probably a damn sight better idea than the BSA or a defamation action.

    • thejackal 4.2
      11 October 2011 at 12:54 pm

      +1 Forget the BSA… waste of time. Although a defamation case against RNZ would be highly entertaining, I don’t think it would be successful, highlight the attack on freedom of speech or restore the balance of public debate, the latter being the main goal. Will still keep an eye out for the donation details.

  5. appleboy 5
    11 October 2011 at 10:40 am

    Bomber’s comments were no less partisan than…oh let em see..Michelleallyoulike Boggy (National ) or Mathphew WHOton (worked for National). Surely this decision should stand up to a complaiont? What channel to seek an official complaint in light of other right whingers on the panel delivering right wing views – they just do the same but with a slightly subtle and far less funny tone.

  6. Matthew Hooton 6
    11 October 2011 at 11:50 am

    This is all nonsense. There is no way Key would ever sue or threaten to sue someone for comments like this. First, its not his style and, second, it would be certain to fail (as you point out) because of Lange v Atkinson. I doubt Key has given this any thought at all, and I doubt Richard Griffin even knows about it.

    • travellerev 6.1
      11 October 2011 at 12:00 pm

      No, Key makes throat slash gestures and has his minions do his dirty work and if Key doesn’t sue Bradbury should not have been banned for giving his political views on the man.

      • The Gormless Fool formerly known as Oleolebiscuitbarrell 6.1.1
        11 October 2011 at 12:07 pm

        He was banned for reading his stupid blog post out word for word, stupidly.

        You have no idea how this ridiculous “democracy under attack!” nonsense looks to the normal people in New Zealand.

        • Campbell Larsen 6.1.1.1
          11 October 2011 at 12:53 pm

          democracy under attack seems quite reasonable given the circumstances – if you want an example of nonsense look no further than ‘building a brighter future’

        • travellerev 6.1.1.2
          11 October 2011 at 1:10 pm

          Gormy, You are getting quite emotional on this aren’t you?

          He made a throat slash movement and I have first hand info he tried to shut down descent in Hamilton (from very normal people here in NZ I might add) and he met with Lord Ashcroft in secret who is investigated and scorned in England for his shady banking practices. 
           

          • The Gormless Fool formerly known as Oleolebiscuitbarrell 6.1.1.2.1
            11 October 2011 at 2:07 pm

            Don’t forget Building 7, Ev.

            • travellerev 6.1.1.2.1.1
              11 October 2011 at 3:09 pm

              What does building 7 have to do with this thread Gormy? This is about a scumbag bankster lying to the NZ people and thinking it’s all a great big joke to bankrupt the good hard working people (if incredibly naive of course) of this beautiful country!

              • Deadly_NZ …
                11 October 2011 at 3:20 pm

                It’s probably easier for the vultures waiting in the wings if Donkey just delivered the assets, rather than the ‘bankrupt’ the country like Spain and Greece.

                Most of their problems are caused by bloody speculators, who cause so much damage in their quest for the mighty dollar.

    • The Voice of Reason 6.2
      11 October 2011 at 12:06 pm

      You’re probably right that Key hasn’t given this any thought, because that appears to be his usual approach to his job anyway. But why are you slagging off Richard Griffen? I thought he was on your team, Matthew and appointed to RNZ to make sure episodes like Bomber’s outpouring of truth don’t happen.
       
      Speaking of truth, are you comfortable with Key’s lies in the house and at the press conference?

      • Matthew Hooton 6.2.1
        11 October 2011 at 12:12 pm

        I’m not slagging Richard off. I just doubt that he was briefed on this. (Although, yes, he probably has been by now.) But there is no possibility that he was involved in the decision.

        • the sprout 6.2.1.1
          11 October 2011 at 12:16 pm

          there is no possibility that he was involved in the decision

          Certainly there is no possibility that he should have been involved, but I think we’ll see about that.

          • Jim Nald 6.2.1.1.1
            11 October 2011 at 12:52 pm

            My unnamed source says this can’t be smiled and waved away and there is more than meets the eye. This is not a random comment I am making up.I cannot name my source.

            • thejackal 6.2.1.1.1.1
              11 October 2011 at 12:57 pm

              Your unnamed source is you isn’t it? I can tell by your eyes.

            • travellerev 6.2.1.1.1.2
              11 October 2011 at 1:12 pm

              Yes, I also have a “person” sending me emails and I talk to this person who is very trustworthy but is too chicken shit to stand up against the S&P liars and for me and my political future.

              ROFL!!!

        • mik e 6.2.1.2
          11 October 2011 at 11:16 pm

          Debt going up a billion a week $77billion total Nactional are going to borrow before it gets better

    • Puddleglum 6.3
      11 October 2011 at 1:43 pm

      That’s a worry Matthew. It means RNZ is now self-censoring in an overtly political manner without even so much as the need for a wink and a nod from on high.

      Thanks for making the point – very worrying indeed. 

  7. rocky 7
    11 October 2011 at 11:54 am

    This brings back memories of Crosby/Textor suing Nicky Hager for defamation. I’m left wondering exactly what made Radio NZ decide to take action. Did someone (i.e., John Key) actually threaten them with a defamation suit? The decision just seems a little too arbitrary to have been made out of the blue.

    • POg 7.1
      11 October 2011 at 12:03 pm

      At the very least more questions need to be asked of RNZ if they are going around citing defamation issues.

    • Anne 7.2
      11 October 2011 at 1:46 pm

      @ rocky
      More likely Captain Panic Pants on behalf of his master,

    • Morrissey 7.3
      12 October 2011 at 10:51 am

      The decision just seems a little too arbitrary to have been made out of the blue.

      A brief telephone chat to Richard Griffin was all that was necessary.

  8. travellerev 8
    11 October 2011 at 11:57 am

    It won’t be much but I will be donating. Added to that maybe a law student or someone prepared to make a pro bono political stand might be inspired to pick up the challenge!

  9. the sprout 9
    11 October 2011 at 12:19 pm

    Gavin Ellis defends Bradbury against a ban on RNZ, Kathryn Ryan intimates RNZ’s position may be softening…

    http://www.radionz.co.nz/national/programmes/ninetonoon/audio/2499929/media-commentator-gavin-ellis.asx

  10. prism 10
    11 October 2011 at 12:39 pm

    Self-censorship – the best sort. It doesn’t ruffle feathers, rock the boat, cause coolness between semi-government institutions and the politicals. Radio nz had better not go too far with this. Is Jim Mora’s right wing leaning show becoming a no-go area for strong criticism of NACTs and our leader funky Jokey Hen.

  11. The Gormless Fool formerly known as Oleolebiscuitbarrell 11
    11 October 2011 at 12:43 pm

    This is crazy. You know no-one is actually suing the bumptious cretin, right?

    • felix 11.1
      11 October 2011 at 12:55 pm

      Then why did Radio NZ say so?

      • The Gormless Fool formerly known as Oleolebiscuitbarrell 11.1.1
        11 October 2011 at 1:09 pm

        Did they? Or did “Bomber” say they were?

        According to TV 3 A spokesperson for Radio New Zealand released this statement to 3 News this afternoon.

        Mr Bradbury’s invitation to take part in The Panel discussion segment was withdrawn because his personal comments about the Prime Minister were deemed to be in breach of Radio New Zealand’s editorial requirements for fairness and balance.One of his comments was regarded as being potentially defamatory.

        “Mr Bradbury’s comments were inconsistent with information he had provided to programme producers before going on air.

        “Mr Bradbury later apologised to the programme’s executive producer.It was made clear to him that while his invitation to appear as an occasional guest on The Panel was being withdrawn, it was not a ‘lifelong ban’ and it did not apply to other Radio New Zealand programmes.”

        Wouldn’t be the first time a self important lefty claimed everyone was out to get him (“accountability, blogs, democracy under attack, democratic participation, human rights, john key, national, radio, suppression order”) when really no-one gave a shit.

        • felix 11.1.1.1
          11 October 2011 at 1:14 pm

          Sorry Ole, my mistake.

          As you point out they only said they believed it was potentially defamatory.

          I withdraw and apologise.

  12. RobM 12
    11 October 2011 at 12:59 pm

    Feedback from Radio NZ re banning Bomber:

    “Hi Rob,

    Thanks for taking the time to contact Radio New Zealand… and for the very short message! We appreciate feedback from our regular listeners and I can assure you that your comment about Martyn Bradbury has been noted and passed on to the relevant people at Radio New Zealand National.

    Radio New Zealand has monitored and noted the on-line, email, and blog discussions over recent days relating to The Panel and Martyn Bradbury’s performance last week. There are several points that need to be made.

    Mr Bradbury has not been banned from Radio New Zealand. He was told that his invitation to appear as a future panellist on Afternoons had been withdrawn but there was no suggestion that it applied to other programmes.
    Radio New Zealand received many complaints from listeners regarding Mr. Bradbury’s comments on The Panel during Afternoons with Jim Mora last Thursday..

    The decision to withdraw Mr. Bradbury’s invitation to take part in future editions of The Panel was made by the programme’s Executive Producer immediately after the programme. That decision was supported by the senior manager responsible for the programme and subsequently by the Chief Executive and Editor-in-Chief.

    Mr. Bradbury’s invitation to participate on The Panel was withdrawn because his personal comments about the Prime Minister were deemed to be in breach of Radio New Zealand’s editorial requirements for fairness and balance. One of his comments was regarded as being potentially defamatory. The segment in question was removed from the Radio New Zealand website because it was considered to be potentially defamatory and Radio New Zealand has a duty to protect the organization against defamation proceedings.

    Participants on The Panel on Afternoons with Jim Mora are given plenty of latitude to express personal opinions but it is expected that these will be presented for engagement and discussion and that panellists will conform to Radio New Zealand’s editorial policies and broadcast standards. A relationship of trust and confidence between the programme presenter, producers, and panellists is essential for the programme to be effective.

    Mr Bradbury’s comments on The Panel on Afternoons last Thursday were inconsistent with information he had provided to programme producers before going on air and Mr Bradbury later apologised to the programme’s Executive Producer.
    It was made clear to him that while his invitation to appear as an occasional guest on The Panel was being withdrawn, it was not a ‘lifelong ban’.

    I hope this information clarifies some of the issues that have been raised over the last few days.

    Thanks again for your email.

    John Barr
    Communications Manager”

    My short email had the subject “Banning Bomber” and “Craven.” in the body.

    • travellerev 12.1
      11 October 2011 at 1:17 pm

      ROFL, well at least until after the election!

    • Anne 12.2
      11 October 2011 at 2:54 pm

      Mr. Bradbury’s invitation to participate on The Panel was withdrawn because his personal comments about the Prime Minister were deemed to be in breach of Radio New Zealand’s editorial requirements for fairness and balance.

      So there you have it. It was a political decision! The rest was just waffle and padding to justify their action!

      I was listening to that Panel session and Bomber Bradbury’s bombastic delivery was inappropriate for that type of programme. But he only deserved a rap over the knuckles and perhaps a warning – certainly not a ban. John Barr’s claim Bomber’s personal comments about Key were “unfair and unbalanced” is just a trumped up excuse for their own ‘over the top’ reaction. Anyone who has closely followed the political events of the past few weeks in particular, would know that Bomber’s comments were appropriate and accurate.

      • Tom Gould 12.2.1
        11 October 2011 at 3:21 pm

        @ Anne, indeed. We all now have a new role, monitoring political comment on RNZ National, whether by guests or hosts, that could be construed as ‘personal comments’ about a political leader that can also be construed as ‘unfair or unbalanced’. These RNZ folks will have to add a few dollars to their internal legal advice budget, methinks.

        • The Gormless Fool formerly known as Oleolebiscuitbarrell 12.2.1.1
          11 October 2011 at 3:35 pm

          No-one has a right to be on National Radio until the end of time. If you are a boring, ranty gobshite they are entitled not to invite you back.

          • travellerev 12.2.1.1.1
            11 October 2011 at 4:37 pm

            Yeah, but not a lot of people thought Bomber was boring. Lot’s of epitaphs but boring not part of them! I personally find the middle aged talk radio Pakeha males with their condescending right wing demagoguery far more boring!

    • Morrissey 12.3
      12 October 2011 at 11:00 am

      . . .it is expected that these will be presented for engagement and discussion and that panellists will conform to Radio New Zealand’s editorial policies and broadcast standards. A relationship of trust and confidence between the programme presenter, producers, and panellists is essential for the programme to be effective.

      A few years ago on The Panel, Dr. Michael Bassett claimed that Nicky Hager is “a holocaust-denier”. Neither Mora nor his other guest said anything, despite the absurdity of Bassett’s lie.

      Far from facing any sort of censure from Radio New Zealand management, Bassett continues to appear as a guest on The Panel. So do other extreme and intolerant guest commentators like Barry Corbett, Michelle Boag, and Garth George.

      The banning of Bomber Bradbury was not only petty, malicious and partisan; it was utterly hypocritical.

      • Anne 12.3.1
        12 October 2011 at 9:47 pm

        Don’t forget Ian Wishart. Although he does seem to have disappeared into the ether now. He used to make slanderous statements about Helen Clark.

  13. randal 13
    11 October 2011 at 3:41 pm

    that is if you youare one. if you dont tell the truth and lick ass then you will kept on ad infinitum!

    • mik e 13.1
      11 October 2011 at 10:18 pm

      this is getting to be like the rugby the refs are having to much control. On the positive side it has brought about a lot of free publicity

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