We might think the participants in the Craig v Slater defamation decision got what they deserved ... but for the fact that one of them continues to have to relive something she would far, far rather put behind her.
The finally decided defamation proceedings in Craig v Slater must be the stuff of judicial nightmares. A complicated fact pattern involving two deeply unsympathetic parties. The application of finely balanced questions of law, which are upset part way through your deliberations by a new decision from a higher court. A massive 659 paragraphs of reasoning, all leading to an outcome which gives nothing to anyone involved.
For this you left more lucrative private practice, where you had the luxury of largely setting your own timetable and choosing your own work? Is this serving the societal good in any way, shape or form?
Admittedly, Toogood J’s decision in the case has some importance in helping to flesh out the application of the newly created “responsible communication on a matter of public interest” defence to a defamation action. In particular, it rightfully reminds those dwelling in the blogosphere that if they want to don the mantle of newsbreakers, then they must comply with the same standards as their journalistic forebears before enjoying legal protection for publishing untrue things about important matters of genuine public interest.
But in terms of the immediate dispute between the parties – once-politician Colin Craig and some blogger who used to be moderately well known – the judgmentrepresents a massive waste of judicial time and court resources.
It tells us that Craig was defamed by the blogger on two specific occasions. But it also tells us that Craig engaged in “moderately severe” sexual harassment of his former press secretary, Rachel MacGregor, over a sustained period of time. It also concludes that Craig’s own actions – in engaging in such behaviour, and also in sending a pamphlet to households around the country denying he had done so – undermined his own reputation to such an extent that the blogger’s defamatory comments could inflict no further damage upon it.
So Craig walks away from court with this judicial finding of fact against him and nothing but a declaration that the two specific allegations constituted defamation. In other words, a nice piece of paper he can print out and weep over in the long, dark nights to come.
As for the blogger, he also walks away with less than nothing. Sure, the court found that the things Craig accused him of – being, in effect, “a compulsive [or] a calculated liar” – were untrue. However, the fact that Craig made these claims by way of response to what he saw as an attack on his own reputation meant they were covered by “qualified privilege”, and so were not defamatory.
Meaning that the blogger receives no damages, much less the $8,117,000(!) he sought. What is more, alongside the judge’s conclusion that the blogger had on two occasions published outright defamatory things about Mr Craig were findings that on another five occasions he published untrue (but not defamatory) things.
Readers may judge the general reliability and worth of information presented on the blogger’s website accordingly.
Were this all there were to the case, it would be an occasion to wish a plague on both houses, mixed with irritation that our overstretched courts are being burdened with such nonsense. However, unfortunately there’s one party to proceedings that we can’t simply leave behind in the wreckage.
That is, of course, Rachel MacGregor. This case was the second in which she had to relive on the public stand her experiences working with Craig – experiences that have been found twice now to involve a sustained form of sexual harassment.
The third case, in which Craig directly sued MacGregor for defamation, has just wrapped up its hearing. The first, in which Jordan Williams sued Craig, is due to go before the Supreme Court – with Craig arguing it should be returned to the High Court for another full hearing (at which MacGregor would, again, have to testify).
Note what each case involves. In essence, it asks someone (a jury, or a judge) to decide whether MacGregor “really wanted” Craig’s affection and attention. So, again and again and again (and maybe again) she is being required to face Craig demanding she admit that she was a willing recipient of his actions towards her, despite the all-too obvious fact that she wants nothing at all to do with him.
This is not a state of affairs that anyone should take joy in, whether or not their feelings go by some German term. It is not in any way funny or titillating. And whatever else it is, it cannot be the sort of “justice” any judge would have expected to preside over when she/he/ze took the oath of office.