Media: When blackmail doesn’t mean blackmail
A defamation case involving former National minister Steven Joyce, the NBR website and its publisher focuses on what columnist Matthew Hooton meant by particular words he used in an "unfair, ruthless, spiteful and repugnant" column.
A lawyer for business website the NBR says when one of its columns suggested former finance minister Steven Joyce could blackmail the new National leader Simon Bridges it did not mean "blackmail in the criminal sense".
Phil Ahern, acting for NBR and its publisher Todd Scott in a defamation trial brought by Joyce at the High Court at Auckland, said the column written by Matthew Hooton should be taken to mean Joyce "might apply pressure to" Bridges.
The column, for which Hooton subsequently apologised and paid Joyce $5000 in costs, was published by NBR against Joyce's strong objection and later described by Scott at various times as "unfair, ruthless, spiteful, repugnant" and "a horrifying hatchet job". Scott however said he would defend his organisation's right to publish it and in tweets suggested its "sources are solid" and he would not back down.
Ahern told the court the blackmail reference in one of two parts of the Hooton column Joyce is suing over was about "politics, and it means nothing more than he [Joyce] might apply pressure to Mr Bridges".
Justice Pheroze Jagose put it to Ahern: "A reference to blackmail is more than simply applying pressure - it is to bring some inappropriate pressure to bear."
Ahern: "No, sir. Where do they draw the line? Where does the meaning end? When you look at the nature of the article as a whole is a reader going to go 'Ooh, Mr Joyce is going to apply unlawful or improper pressure to him'? No, ordinary readers would say no more than applying pressure."
He told the court sometimes the stronger the language used, the less credibility it had.
"If I was to say 'I'm in trouble with my wife, I hope she does not kill me', no one would think she is going to kill or harm me."
NBR is being sued over the column and Scott faces court for three tweets that Joyce says defamed the MP again by saying the column was correct and Hooton had retracted and apologised for reasons other than the column being wrong.
In his closing submissions, Ahern said the meanings Joyce had placed on the passages in the column were not what ordinary readers would take from reading it.
As well as the blackmail reference, a claim that Joyce had tried and failed through his Communications Minister successor Amy Adams to introduce a copper tax on phone lines and thus benefit "his friends at Chorus", did not mean he was actually personally friends with Chorus. It meant "the Government was friendly with Chorus".
Questioned by Justice Jagose over what Hooton and NBR were trying to say, Ahern said: "To assist, to make it easier. A worldly person is presumably going to know the Government is supporting Chorus.... Is there something wrong with Government assisting Chorus, supporting an entity to deliver a service to New Zealanders? In my submission, no."
The lawyer said the disputed sections of the column were subsumed by other content in it.
Justice Jagose: "The idea that people in public office have to carry a greater burden simply by dint of the office is well understood.... Is it not that these particular allegations are not about Mr Joyce and his office but about Mr Joyce?"
Ahern said the entire column was about Joyce's record in office and politics and did not address his personal matters.
Justice Jagose: "I can understand the argument on the copper tax. I have great difficulty understanding it in terms of the blackmail allegation, which does seem to be... between Mr Bridges' aspirations for the National Party and Mr Joyce's aspirations within it.... The context for the blackmail allegation is a change in National's line-up and the proposal from the writer that Mr Joyce should be limited in his portfolios... Is it not more about Mr Joyce than his operation of the portfolios?"
Joyce is seeking a declaration by the judge that the passages in the column and the Scott tweets defamed him, and seeking payment of his costs from both parties. He is not seeking financial damages.
On the tweets, Ahern said Joyce's action against Scott personally had been "fundamentally flawed and has been prosecuted unsatisfactorily". Joyce had not shown the tweets republished the allegedly defamatory words in the column, as they had not, and the wording of the tweets had not been defamatory. "The court could not conclude an ordinary person reading those tweets" would believe he had acted improperly, committed blackmail and acted to benefit his friends at Chorus.
While Scott had tweeted that "the sources are solid", he had tweeted far more than the three tweets cited in court and those showed he did not agree with Hooton's viewpoint. "Look at all of the tweets."
But Joyce's lawyer, Zane Kennedy, said Scott's tweets were clearly defamatory by innuendo, where someone reading them and knowing the contents of the column would understand them to say the Hooton column was right in its claims about the MP. He cited a British case in which someone was found to have defamed a judge through an oblique reference to the judge's name in a tweet.
Scott had republished the defamations, Kennedy said, as the tweets "endorsed them... it amounts to confirmation that what is said in the article is true and can be relied upon".
Joyce had called to court former National Party campaign worker and political adviser Hamish Price who had read the Hooton column in NBR, had seen Scott's tweets and had discussed them with Scott by direct mail in the context of the Hooton column.
"The 'sources are solid' tweet can only mean the article including the defamatory passages was true and responsibly published," Kennedy said. "It also suggests Hooton had only stopped fighting because he lost his nerve, rather than [him accepting] the passages not being true and ought not to have been published."
He said there could be no doubt the tweets were about the column subject to defamation action. "One was addressed to Mr Joyce's lawyers' Twitter handle, which makes it clear it was about that particular article."
Scott could not now argue that other tweets he had made, before the three that were under scrutiny by the court, somehow provided an antidote or showed he did not support the meanings in the column.
Kennedy asked the judge to bear in mind when deciding on costs - if he found against the NBR and Scott - that NBR's marketing material boasts of the calibre of its reputation, the fact it had never been successfully sued for defamation and, crucially, that its journalism went to areas its "rivals find legally too risky or too complex to report".
NBR had decided from the beginning not to compromise and had ignored a court recommendation to apologise and settle.
"NBR is promoting itself as covering things which its rivals find too risky to report. It was a commercial decision to play in this sandpit.
"Fortunately Mr Joyce is not after money, so [it could be that] the real loss to NBR is loss of reputation.
"The approach NBR has taken from the word go - the decision to publish the article. There is no evidence it had been subject to proper editorial control or oversight," he said.
Out of commercial self-interest, the organisation had been intransigent. "It does not want to seem, or cannot be seen, by its subscribers as backing down on a matter it has characterised as a matter of free speech."
Justice Jagose reserved his decision, indicating it could be released before Christmas.
NBR is back in court on Thursday in the Auckland District Court in a defamation case NBR has brought against Newsroom over publication of an agency story from BusinessDesk, which quoted from a letter Joyce's lawyers had sent NBR on the column at issue in the above High Court case. Newsroom is seeking to have the case struck out.
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