Sledge Hammer

‘Trust me. I know what I’m doing.”

It’s sometimes possible to ‘get a sense’ of an author by what they write. (Not always.)

I’ve talked about the work of Judge David Harvey, New Zealand’s ‘internet judge’ quite a bit here on The Paepae. (See these posts.) I admire him.

Because my interests in media/internet/publishing intersect with the sort of cases he handles, I’ve read of few of his judgements. I think one of the first was his September 2010 Decision that convicted blogger Cameron Slater on multiple counts of breaching name suppression orders through ‘coded messages’ on his Whale Oil hate blog1. (Good work.)

I sometimes read Judge Harvey’s blog The IT Countrey Justice — it can go waaaay over my head, I admit, at times, but I read it now and then. (I don’t think I’m quite his target audience).

How ‘gagging’ can make things worse

One judgement Judge Harvey highlighted on his blog recently was P Courtney J’s decision Wishart v Murray — a ruling which has implications for anyone running an online discussion forum or Facebook page (or blog!) that routinely small-P publishes other people’s comments which could be perceived as defamatory. That’s relevant to discussion we’ve had here recently. Obviously.

This isn’t the time or place to go into that case in detail (read about it at Judge Harvey’s blog – Facebook Friends: 3rd Party Comments and Publication for Defamation), but superficially (insert my ‘I am not a lawyer’ disclaimer here) …

The defendants set up a Facebook page and Twitter account apparently specifically designed to disparage and encourage a boycott of Ian Wishart’s book about Macsyna King (mother of the Kahui twins).

A number of extremely negative statements (like, really bad) were [allegedly] made about Ms King and Mr Wishart by the defendants through those platforms, as well as during interviews on RadioLIVE, as promotion for their boycott campaign.

In addition to the statements the defendants themselves made on RadioLIVE, Twitter and the Facebook page, third-party Facebook commenters, many of them anonymous (sigh), got feral, and [allegedly] ‘defamed’ the plaintiffs some more. Ian Wishart and his supporters climbed in to defend him from the allegations on Facebook. That inflamed debate even more — and the administrators/defendants responded by apparently BLOCKING Wishart and some of his supporters (!!) from the Facebook page. (I know, right?)

Note: Judge Courtney’s decision (there’s a link to it on Harvey’s blog) was on an application to ‘strike out’ Wishart’s statement of claim, NOT the actual defamation proceedings. Defamation actions are typically very expensive, long-winded affairs with much legal argy-bargy. This was just a preliminary skirmish.

It seems to me a key component in the dispute behind the defamation case  — in addition to the defendants’ own statements — was that action, blocking them from the Facebook page, which appeared to stifle open public debate. The judgement quotes one of the defendants explaining his reasoning:

…the purpose of doing this was not to prevent Mr Wishart from telling his side of the story. His comments, and those of some of his supporters generated a significant number of responses, including some abusive and inappropriate comments. Once it became apparent to me that this occurred I blocked Mr Wishart and a small number of his vocal supporters as a way to discourage misuse of the page. To keep the debate as balanced as possible I posted links to pages setting out Mr Wishart’s version of events …

Well, that didn’t work out too well, did it?

As I see it, that (asymmetrical?) ‘blocking’ action denied Team Wishart (him and his supporters) their opportunity to ‘put their side of the story’ and to openly, publicly challenge or correct assertions being made about their competence, character and motivations by third parties — many anonymous — that they naturally took offence to. As I read the judgement, effectively gagging them in that way was perceived as aggravating the grievance.

It’s my long-time policy, based on a value of fairness, to welcome responses to my posts on The Paepae (and to third party comments) and to encourage open participation from all ‘sides’ of a debate about any of the issues raised here, especially contentious ones, whether I ‘agree’ with them or not. (I even have a fairly high tolerance for trolls, like ‘Craig’.)

It’s also my habit (as it is others’), to directly address criticisms of myself in other forums where such critique is published, while being mindful of The curse of hypervigilence. My recent posts at the NZConservative and The Leading Edge blogs and elsewhere, where I’ve copped it fairly harshly about my post Is this what we want? Internet ‘take down’ and indefinite gagging orders?, are recent instances of that.

So, if I’d been in Ian Wishart’s shoes, being openly and anonymously smeared and maligned while blocked from responding, I would be frustrated and furious, too. Wouldn’t you? The judgement says he’s suing for $8 million. (As an aside: Now imagine being the blogger subject to Judge Harvey’s indefinite gagging order. What must that be like? Because the demonisation of her hasn’t stopped.Hmmm.)

I also follow Judge Harvey on Twitter — which can be fun. I recommend it, if you’re a twit like me. (joke)

You may remember when Judge Harvey withdrew from the Kim Dotcom extradition case because of his pun at Nethui: ‘We have met the enemy and he is US‘. That wasn’t actually Judge Harvey’s tweet, but a ‘Twitter storm’ is how the quip got out. Gah!

Last week I quoted from Judge Harvey’s recent (controversial?) ‘restraining order’ decision (link above) and in passing, highlighted this comment…

… It should also be noted that [the applicant] has completed a law degree, passed her professionals and has been admitted as a Barrister and Solicitor of the High Court and as such must be found to be a person of good character.

While I certainly don’t question his conclusion in this instance, I did have a wee chuckle, and suggested the use of such bald criteria could be seen as amusing, if you actually know any lawyers socially.

As it turned out, a lawyer I spoke to at the weekend, (who reads my blog, bless his cotton socks) told me he laughed at Judge Harvey’s comment when he read it too. He said something like: “Right on, Peter. I get a monthly bulletin [probably Law Talk – ed.] listing a stream of lawyers up on all sorts of charges … censured/fined/struck off … hahaha!” 🙂
Of course they’re only human. (That expression always reminds me of the wonderful spoof: ‘Leave John Key Alone‘.)

Which made Judge Harvey’s tweet the other night (below) all the more funny. Look at his cheeky adaptation of 1980s cop comedy Sledge Hammer‘s famous catchphrase: ‘Trust me. I know what I’m doing.”

Twitter djhdcj-yeah right.Trust me. I_m a lawyer.-2

– P


Click to enlarge (warning: foul language)

1 Convictions which Cameron Slater, with typical microscopic self-awareness, compares to speeding tickets (see right). [Disclosure: I’m not pure, either. And I have ‘earned my share’ of actual speeding tickets. Bad, bad Peter.]

Facts are stated to the best of my knowledge and commentary is my honest opinion. Corrections or clarifications are always welcome by email. Comments are open. [Please don’t be silly enough to think any of what you read above is a substitute for your own legal advice.]
– Best wishes, Peter Aranyi © 2013 All rights reserved.