An 11 month legal battle with political consultants Crosby/Textor during an election year reveals the trouble with our defamation laws

* Please see radio transcript and table at the end of this post

I have just been through an 11-month defamation case, finally settled this week. I am happy with the result – I won on all points of substance – but am also concerned that my and my lawyer's time could be wasted month after month on a case that from the start had so little merit.

From the first threatening legal letters, in July last year, I was confident that the case against me would fail. But I did not understand then that it is the process, much more than some future court judgement, that is used to used to inflict damage in defamation proceedings. Something is seriously wrong with our defamation laws.

Like similar cases in other countries, the story that follows shows how easy it is for a wealthy company or individual to use defamation proceedings against journalists and writers who criticise or annoy them. The result is quietly undermining freedom of speech. Here is the story. (I have written a long description of the case for people interested in defamation law.)

The case began in the middle of last year when I wrote a feature article in the Sunday Star-Times, revealing that National Party leader John Key was employing the notorious Australian political strategists, Crosby/Textor. Their work for John Howard in Australia, the Conservative Party in Britain and Don Brash in New Zealand had been controversial so it was illuminating to find that Key had chosen the same advisers. National was angry that the news had come out only months before the general election and Key refused to answer questions about the subject.

The following day I was interviewed on Radio New Zealand about Crosby/Textor's work for National, during which I repeated details from the article about Crosby/Textor's reputation. A few days later I received a legal letter on behalf of Crosby/Textor co-director Lynton Crosby claiming I had "grossly defamed" him. The letter demanded that I make a "comprehensive apology and retraction" within 48 hours. It also said – bizarrely – "Mr Crosby requires you to disclose your sources immediately." I checked that I was confident of everything I'd said in the interview and decided I could ignore the letter.

After more rounds of threats, Crosby's lawyers served defamation papers on me on 26 August 2008. Crosby demanded $100,000 in damages plus his legal costs from me for the "hurt, distress and embarrassment" he had supposedly suffered as a result of the interview. He also demanded that I sign a statement sincerely apologising for everything I had said about Crosby/Textor. He also sued Radio New Zealand, which, he said, had broadcast my statements "knowing them to be false or recklessly not caring whether they were true or false and/or with no honest belief that they were true" – an especially curious claim since no radio station knows what someone's going to say on live radio. In this week's settlement, Mr Crosby gets a brief apology on two minor points but I succeeded on every other point, including that neither I nor Radio New Zealand have to pay any damages or costs to Crosby.

My lawyer, Steven Price, responded to Crosby's August "statement of claim" by providing extensive detail of why the factual statements I made were true and the comments I made were honest opinion – truth and honest opinion being the main defences against defamation – and why they amounted to responsible political discussion in the public interest, which is also protected from defamation liability.

I had talked about Crosby/Textor's record of using "fear and prejudice", attacks on refugees in Australia, attacks on gypsies and asylum seekers in Britain and, generally, "manipulative politics" to achieve their political aims. Crosby sought apologies and retractions but, on all these issues of substance, we won. I did not apologise for any of this in the settlement statement and, indeed, they are all comments I will happily make again.

In other words, Crosby effectively abandoned the great bulk of his claim after we presented our response. I feel vindicated by the outcome but remain unimpressed that Crosby could use the sledgehammer of a lawsuit when his strongest complaint was a minor and obvious slip of the tongue.

My slip of the tongue occurred during the interview when I was talking about Crosby’s co-director, Mark Textor, being involved in push polling in a Canberra by-election (planting false information about an opposing candidate under the guise of conducting a poll). It is a well known and notorious incident in Australian political history. At one stage while talking about the push polling, I accidentally said “Mark Crosby” instead of “Mark Textor”. It was clear from the context that this was a minor slip (I've put the transcript below so you can see for yourself), but I offered from early on in the legal case that I was happy to clarify that “Mark Crosby” was not referring to Lynton Crosby. That trivial slip, in the end, was Crosby's strongest ground for the 11-month defamation case.

The other thing I have clarified in the settlement statement (and had offered to clarify from early on) came towards the end of the interview when I'd said personal attacks on the Labour Party leader, Helen Clark, were an example of dirty tactics in politics. I didn't say Crosby was behind these attacks – which Crosby claimed in the defamation case – so I offered to clarify this as well. Thus the only issues where Crosby ended up having any case were a trivial slip and a possible bit of ambiguity.

In order to reach a settlement, I offered to make a short statement correcting both these points and apologising to Mr Crosby for them. In contrast, Mr Crosby has dropped the lawsuit in relation to everything else I said about Crosby/Textor's activities and reputations. Crosby has also dropped his demands for damages and costs. Right up to the final settlement, his lawyers pushed for Radio New Zealand and I to pay at least some of his legal costs. But since we had done nothing wrong, we refused and they eventually dropped this demand as well. There were various other legal twists and turns as well, each taking more effort and lawyer’s time, that are documented here.

Thus, Mr Crosby has waged an 11-month legal battle and only got a small correction, offered from the start, for the type of minor slips that happen every day on live radio. I am left with the conclusion that the defamation case was essentially legal bullying, punishing me for publishing information that the National Party was trying to keep secret and discouraging me from writing more.

Fortunately the defamation case largely failed. It would have been galling to have to apologise or pay damages for telling the truth and engaging in important political commentary. But the case should never have happened at all. Here we had an Australian political operator, working for a political party that had reason to want to to tie me up or waste my time during the election year, able to use legal means to do exactly that. It didn't matter how flimsy the grounds were.

New Zealand's dodgy defamation laws are able to be misused as a weapon by anyone with the money to pay. We need completely new ways of dealing with defamation, so that substance rather than process win the day and wealthy parties cannot just wear down their opponents by mounting legal bills. The current system is broken. Are there legal professionals out there willing to try to fix it?

 

Here is the relevant part of the transcript of the 30 June 2008 Radio New Zealand interview:

Kathryn Ryan: Have you got some specific examples out of Australia or out of the UK that you think illustrates this, ah, organisation crossing a line that other parties don't here.
Nicky Hager: Yes, let me tell you a story from Australia. Mark Textor, who is the man who is John Key's main outside strategy advisor now, had a case in a Canberra by-election where he was using what's called push polling. This is where they get the pollsters not just to ask people what they think, but that plants ideas there. His pollsters were ringing up people and saying, about a candidate called Sue Robinson, would you be more or less likely to vote for Sue Robinson if you knew that she had supported abortion up the ninth month of pregnancy. Which of course is so outrageous that it was repelling people if it achieved the purpose they wanted. Sue Robinson hadn't ever said that. Mark Crosby [sic] was eventually sued in court because Radio National in Australia got hold of a transcript of what the tape of what they'd done, he had to pay the candidate $80,000 compensation and apologise, but she'd lost the election.


This schedule lists what Mr Crosby sought in the legal proceedings compared to what he got in the final settlement:


What Crosby demanded
:

Payment of $100,000 damages. Result: No damages to be paid

Payment of his legal costs. Result: No legal costs to be paid

Sources to be disclosed. Result: We ignored this absurd demand

A “comprehensive apology and retraction”. Result: No apology required

Apology for “hurt, distress and embarrassment”  Result: No apology required


Crosby also wanted:

An apology for and retraction of the statement: "the controversial reputation they built there is for closing down issues that don't suit them and instead trying to focus the public's mind, normally on things to do with prejudice and fear. There have been attacks on refugees, dirty politics."  No retraction or apology required for this statement

An apology for and retraction of the statement: “the lines which make you notorious like they are, are ones to do with manipulation and deception and unreasonable secrecy.” No retraction or apology required for this statement

An apology for and retraction of the statement: "They've made it... their speciality to do what they call a certain kind of focus group research where they don't ask people what they want or care about, but they try to dig deeper and find subconscious fears or prejudices and then work out lines which their clients will repeat and repeat and repeat, to tap, sort of, the most unworthy parts of the voters rather than the best."  No retraction or apology required for this statement

An apology for and retraction of the statement: “They are the world-renowned dirtiest players in this”. No retraction or apology required for this statement

An apology for and retraction of the statement: “In Britain for the Conservatives they ran a campaign which, although this was not core British Conservative policy, was attacking gypsies and asylum seekers”. No retraction or apology required for this statement

An apology for and retraction of the statement: "They weren’t trying to find out what people think and respond to it, which is a democratic process, they were trying to dig out ways of developing things, even from people’s subconscious fears and concerns, which they could use as attack lines. In other words, it’s a kind of manipulative politics.”  No retraction or apology required for this statement

During the live radio interview Mr Hager described Crosby’s co-director, Mark Textor, being involved in “push polling” in a Canberra by-election. During this Mr Hager made a slip of the tongue and referred to “Mark Crosby” instead of “Mark Textor”. It was clear from the context that this was a minor slip, but Mr Hager offered from the start of the case to correct it. Crosby demanded that an apology to both him and Mr Textor, saying that the push polling story was untrue.               No retraction or apology was made about Mark Textor’s involvement in push polling in the Canberra by-election.

A correction and apology was made to Mr Crosby in this week’s settlement that the words “Mark Crosby” were not referring to “Lynton Crosby”.

Towards the end of the interview Mr Hager talked about personal attacks on the Labour Party leader, Helen Clark, being an example of dirty tactics in politics. He didn't say Crosby was behind these attacks  -- which Crosby claimed in the defamation case -- so he offered early in the case to clarify this as well. A correction and apology was made to Mr Crosby in this week’s settlement clarifying that this part of the interview was not referring to him.

Crosby demanded that the settlement statement be placed of the Radio New Zealand website for at least twelve months. The settlement statement will be placed on the Radio New Zealand website for seven days.

Comments (12)

by Christopher on June 04, 2009
Christopher

Astonishing, but yet, not unexpected.

Thanks Nicky for not giving in to this behaviour.

by Mark Robinson on June 04, 2009
Mark Robinson
John Key appears to be suffering from the strain tonight on Checkpoint. http://www.radionz.co.nz/audio/national/ckpt/2009/06/04/prime_minister_d... He appears incapable of pronouncing T[e]XT instead consistently saying something indistinguishable from "Textor[s]". Perhaps this is a trained response designed as a subliminal marketing ploy of Crosby/Textor. Perhaps it's a Freudian slip. Perhaps it's plain old dyslexia. How are we to know ?
by william blake on June 04, 2009
william blake

...I would have said a pavlovian response. JohnKey silently dog whistling his faithful guardians in his time of need..

by Matthew Whitehead on June 05, 2009
Matthew Whitehead

Wow, I that's really low of him. I'm glad you got through it without any substantial losses, but eleven months for something so trivial? Eww.

by Tim Watkin on June 05, 2009
Tim Watkin

So what odds that the phrases "I can't fire him twice" and "I'm the piggy in the middle" were scripted by C/T? Key's trotting them out all over.

by Christopher Bishop on June 06, 2009
Christopher Bishop

I'm a bit off a loss here. Nicky, you claim that "New Zealand's dodgy defamation laws are able to be misused as a weapon by anyone with the money to pay."

Leaving aside your own experience (which I will come to), do you have any other evidence for this?

"We need completely new ways of dealing with defamation, so that substance rather than process win the day..."

Except substance did win the day in your case. It's pretty clear what you said was either true or honest opinion, and covered by the defence of political communication. So process didn't win out over substance.

I'm sure the process of sorting that out was a bit time consuming, and there were other things you could have been doing, but what's the alternative? You haven't provided one, just said "we need a new way", when your own case doesn't even provide evidence of anything wrong.

"and wealthy parties cannot just wear down their opponents by mounting legal bills."

But you weren't worn down! You won, without even going to court!

"The current system is broken. Are there legal professionals out there willing to try to fix it?"

As a final point, its not as if the case even had a chilling effect on your speech last year. I don't recall you being backward in coming forward about various political issues last year, and that's as it should be. So its not as if the case even slowed you down. It sounds like the case was an annoyance, that took up some of your time. You'd rather it hadn't have happened. But rich people are entitled to the benefit and protection of the law too, and to try and use it.

What I don't understand is that you're claiming the law needs to be changed, when you are the victor in this case and so far I haven't seen any downside.

by Nicky Hager on June 06, 2009
Nicky Hager

Hi Chris, I think if you read the longer version of what I wrote (see "I have written a long description of the case for people interested in defamation law" above) you will understand more what I am saying about the defamation law.

It revolves mostly around that aspect of fighting a defamation case that you describe as being "a bit time consuming, and there were other things you could have been doing". Try it sometime, and see if you still think that it's fine to have to divert your life (and potentially spend large amounts of money) fighting a case that you can see from the start is flimsy but where you have no choice but to waste the time.

Unfortunately, my case is not unique. I know various people personally who have had long and expensive defamation actions taken against them. None of these cases ever got to court, and almost always the person being sued was nominally the 'victor', but the cases still served to punish the people for annoying powerful interests and also, often, to block them from saying more on an issue while the case was running (lawyers often advise keeping quiet not to aggravate the situation).

This isn't about rich people having a right to the benefit and protection of the law. It is about an area of law that, first, is mostly only available to rich people, second, risks being won by the party with the most financial staying power and third -- and this was my main point -- can drag other parties into potentially years of litigation even when they have done nothing wrong. Combined, these three factors mean that defamation can be used to achieve purposes (eg. punishment, spite or silencing) that have nothing to do with someone having the right to protect their reputation. People, whether rich or not, have a right not to have their lives disrupted and their money taken in this way.

Essentially, there needs to be a much less expensive and drawn out way of handling defamation. Otherwise the justice of allowing people to protect their reputations is outweighed by the injustices created by the process. I propose one idea in the longer paper I referred you to. But I am not a legal expert and that is why I invited people who are to address the problem.

by Bruce Thorpe on June 15, 2009
Bruce Thorpe

Thanks Nicky for fighting the good fight. We are all indebted to you.

I have had some experience with our criminal justice system but know littel of our civil system and its approach to such complaint. It  seems to me there are good grounds for early dismissal  as trivial and unsustainable, even abuse of process.

by Mary S on July 15, 2009
Mary S

I'm really sorry to hear of Nicky Hager having been harrassed like this.  It's wrong to say that suing someone has no effect on them if the person being sued wins the case;  they lose time, legal fees, and have the stress of not knowing what the outcome of the case will be.

 

This seems typical of the way that the rich and powerful can use the law against others.  For example, when I recently moved out of a flat, I didn't want to pay a small sum for mould damage.  To try to force me to pay, my landlord upped the claim to thousands of dollars for a leaking window.  Even though I knew that the case would probably be resolved in my favour, it was so stressful I ended up offering to pay the original amount just to avoid going to court.  My landlord had the time and wealth to pursue this, when I didn't.   Same principle!

by jessie on August 09, 2009
jessie

Unfortunately this is just the nature of tort law. Claimants generally want damages; money is the central theme! There isn’t really much that can be done about this. Claims under the area of torts centre on those who are able to provide the funds and this has been the case for hundreds of years. 

You make some good points about the law and I agree with the problems you identify. However, this is not only an issue in defamation but with most of tort law. Just look at poor Susan Couch and the years worth of court proceedings she has been through. Unfortunately our small legal system finds it difficult to cope with all the cases that arise. As a result, tort claims are less of a priority; for example criminal trials require attention more quickly. But as you must know, there are so many reasons why these proceedings are so long.  

Ultimately, justice was served, though? So, I wonder if it really is as terrible as it can be made out. Yes, it is a huge inconvenience but our system often works out with a just result. Court proceedings are never easy and never seem quick. Some cases go on for years and years... It's just the nature of the law (particularly tort and contract), sorry! 

It isn’t really up to the legal professionals to solve the particular problems with defamation. Lawyers and judges follow precedent. Yes, the law is changeable and yes, it is constantly evolving but to change the law of defamation requires a legislative change. All we can do is lobby for the change but ultimately it is a decision for Parliament to investigate and make, not the legal professionals. 

by HB on October 23, 2009
 HB

what about having the Plaintiff (eg Crosby/Textor) accountable for the legal fees of the defendent (eg Nicky), if the case is not upheld?

 

that would provide a double incentive (financial, & avoiding the embarrassing press coverage) to get good legal advice before proceeding.

 

getting this legal change this would of course require that MPs champion the case of investigative journalists, might not be very easy.

by Penny Bright on March 25, 2011
Penny Bright

Nicky, you are absolutely correct about how defamation law in NZ is used 'against journalists and writers who criticise or annoy them. The result is quietly undermining freedom of speech.'

TWO QUESTIONS:

1) Are you aware of the case of Vince Siemer?

Arguably NZ's foremost 'Judicial Public Watchdog'?

www.kiwisfirst.co.nz

You two should swap notes on this matter. :)

2) Are Crosby Textor still working for John Key /National Party?

Yes/no?

Cheers!

Penny Bright

http://waterpressure.wordpress.com

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