I didn’t want to be the one who ‘broke the news’ that, as the Herald on Sunday‘s Kathryn Powley put it in her story ‘Blogger told to stop‘:
a blogger has been ordered to remove dozens of posts and comments from her website and issued with a restraining order against a lawyer she harassed on-line.
Rob Kidd at the Sunday Star-Times put it this way in his piece ‘Biting blog given last post using stalker law‘:
Judge David Harvey issued blogger Jacqueline Sperling with an indefinite restraining order to protect lawyer Madeleine Flannagan, a rare case in which the Harassment Act has been used to cover blogging.
With respect, I frowned at Rob Kidd’s reference to “a blogger who launched an online campaign to ruin [the lawyer’s] reputation”, since it imputes motivation. He’s also wrong in fact when he states about the 2012 case: “Judge Harvey ordered some posts be taken offline …” No, he did not. The article misstates some other facts too, as I read it.
I was sent a copy of the judgement as soon as it was released, as you’ll read below, and since The Paepae actually features in the decision, I sought and gained Judge Harvey’s permission to quote from it. But I deliberately didn’t want to be ‘first’ with this story. I also wanted to see what ‘posture’ the parties took. Now that the story is ‘out’ in the often-salacious Sunday papers, in news media and being discussed on other websites with far more web-traffic than this one, let me share my response. You may see it as contrarian, but I promise it’s not for the sake of it.
The background — what a difference a year makes
Last year I wrote about the unsuccessful attempt to obtain a court-sanctioned restraining order against a blogger who had engaged in repeated criticism (some would say denigration) of two other people, also bloggers, one of whom was a lawyer originally engaged to make it all stop.
That application failed for a number of reasons, as canvassed in my post Implications of recent internet gagging attempt and in comments following.
Broadly, as I read it, last year’s action failed because:
(1) The applicants had ‘engaged’ online with the blogger. (Both the original applicant and the lawyer acting for her who joined the legal action after the blogger turned her flamethrower in the lawyer’s direction.) They were also seen by Judge Harvey as robust enough to handle the ‘distress’ they claimed was caused by the blogged comments. The lawyer, in particular, had earlier engaged in online and public debate from a religious standpoint about contentious law reform issues like abortion and civil unions.
(2) The applicants were seen by the Judge at that time to have ‘put themselves in harm’s way’ by seeking out and reading the blogger’s comments.
(3) The Judge considered it a big step under the Bill of Rights Act to interfere with someone’s freedom of expression notwithstanding that expression may amount to harassment, and
(4) The Judge suggested that if defamation was alleged, then a civil prosecution seeking remedies along those lines would be a more appropriate avenue than an application for ‘restraint’ from ‘distress’ under the Harassment Act 1997.
Significantly, in his 2012 decision declining the application for restraint, Judge David Harvey also warned the blogger to cut it out.
Well, she didn’t (partially [feeling] provoked by the lash of opprobrium directed at her, see below). Now he’s ordered her to. As reported above, the Court has issued orders which amount to a comprehensive ‘take down’ and indefinite gagging.
How did we get here?
Apparently a month after Judge Harvey’s dismissal of the 2012 application for a restraining order, the lawyer, still stung by the slings and arrows that led to her failed court action, and citing some new ones published in the aftermath of the decision, launched another application.
 On the 10th July 2012 Ms Flannagan commenced these proceedings. It will be noted that the proceedings were filed less than a month after my decision. Those proceedings were based upon subsequent comments that were made by Ms Sperling in respect of which the applicant considered that a restraining order should, under the circumstances, issue. [emphasis added]
So — kind of an instant appeal, but not quite.
Let me say (as I did at the time) some of the statements and slurs against the lawyer were ghastly and professionally challenging. A filtered version of some of those allegations, along with rebuttals in the form of an extended right of reply from the lawyer’s husband and some of her other (mostly anonymous) supporters, appeared in the comment stream of my original post on the 2012 judgement. They are also repeated in Rob Kidd’s article — reflecting the Streisand effect in action.
The blogger also filed complaints with the Law Society against the lawyer and her lawyer in the first case, causing professional issues for them — serious and stressful, no doubt, albeit temporary. [The complaints were dismissed by the NZ Law Society’s Auckland Standards Committee which described them as ‘vexatious’ in their ruling, and, in the lawyer’s case, took the view that the complaint itself was ‘a continuation of the harassment’. In his latest Decision , Judge Harvey declined to rule that the Law Society complaint was a ‘specified act of harassment’ saying to do so “could act as a clog upon an individual’s rights to seek redress to the Courts or disciplinary or statutory tribunals to seek relief or redress.”]
The blogger copped a great deal of vile abuse and bullying herself, and suffered gross character assassination (mostly anonymous) elsewhere on the internet. It’s hard to overstate the ferocity with which some who claimed to be upright god-fearing citizens attacked, spat at and pilloried the blogger, dredging up her past and publishing the nastiest of NASTY tirades against her — let me stress again: anonymously — in what can only be seen as a protracted effort to discredit her.
Now the lawyer’s reprise of her Harassment Act application has worked its way through the court system, this time without her openly ‘engaging’ with the blogger (indeed, the lawyer appears to have removed material about the dispute from her own website) and offering the court what the Judge called ‘a large amount of information’. And this time the lawyer represented herself:
 In support of her application she filed an affidavit dated 10 July 2012 and in addition has filed affidavits dated 7 September 2012, 12 March 2013 and 13 May 2013. She also relies upon an affidavit of her husband Mathew Flannagan dated 12 July 2012. [emphasis added]
 The affidavits that have been filed by Ms Flannagan contain a large amount of information. Essentially that information can be divided into the following categories:
(a) Actions done by the respondent on her blog.
(b) The circumstances of the applicant and her particular position which gives added “sting” to the comments made by the respondent.
(c) The surrounding context of the applicants activities and
(d) The nature of the distress caused to the applicant.
The blogger, on the other hand, continued to blog but did not participate at all in the new court case.
 No steps have been taken by Ms Sperling. She has filed neither an opposition nor affidavits in reply. She has not appeared at any hearing.
That strikes me as a shame.
What could have genuinely been a landmark New Zealand court ruling about restricting internet/new media freedoms seems to me flawed by the total lack of defence offered — giving the case an appearance of being one-sided or unbalanced. That’s my layman’s view. Note that Judge David Harvey, regarded as NZ’s ‘Internet Judge’, sat on both matters. I respect him, as I have said before.
According to his judgment released to the parties last week (4/6/13) the blogger has now been ordered to remove (by my count) 26 specified blog posts and about 50 specified comments (not all by her) from her website, and to delete from it any mention of the lawyer’s name or anything that could identify her, even by inference.
As I read it, she is also restrained — indefinitely restrained, until released by order of the court — from publishing any mention of the lawyer or anything which may identify the lawyer or her family on her blog or any website she controls.
Does that seem like a good thing to you? Well I guess it depends where you stand. Let’s discuss it.
What has happened in effect is that the blogger has been sentenced to a public flogging, with her reputation (and photo) once again dragged through the Sunday papers, news and other websites, while her right of reply is severely curtailed. Yes, she could talk to the media, but given their history of exploitatively, pruriently invading her privacy, why the hell would she? Who would advise her to trust a reporter? Not me. (And I say that as one.)
Disclosure: The lawyer sent me a copy of the decision (apparently within 24 hours of receiving it herself) with a request that, as a result, I ‘remove material’ from ThePaepae.com
But … what about freedom of speech?
Judge Harvey reported his wrestle with the Bill of Rights Act and freedom of expression issues (even referring to the Law Commission’s recommendations-in-progress on digital media) like this:
 In making the order that I have which, although it is described as a restraining order, falls within the ambit of a “take down” order contemplated by the Law Commission in its Ministerial Paper Harmful Digital Communications I have given careful consideration to Ms Sperling’s rights of free expression under s. 14 of the New Zealand Bill of Rights Act 1990. I have weighed each post and considered whether, in terms of content and the competing interests of the parties, the removal of the post would amount to a justifiable limitation upon Ms Sperling’s free expression rights.
 I further order that Ms Sperling be restrained from publishing Ms Flannagan’s name or any material that may directly or by inference lead to her identification or any other details about her or her family, explicit or implied, on her blog WonderfulNow or any other on-line forum accessible by the public which she can moderate.
 Ms Flannagan also seeks an order that Ms Sperling publish a retraction of certain matters. I am not prepared to make such an order. I consider it beyond the scope of a restraining order and compromises the integrity of the future restrain on publication of material regarding Ms Flannagan that I have made in the preceding paragraph.
The Duration of the Order
 Under s 21 the Court may make a restraining order for such period either longer or shorter than one year as the Court considers necessary to protect the applicant from further harassment. Normally an order subsisting for one year is sought but in this case Ms Flannagan seeks an order lasting longer. She sought one lasting for 10 years in her application but extended it for an indefinite period along the lines of the order made in favour Mr Spearrit (sic) in his proceedings in the Manukau District Court.
 A restraining order by its nature interferes with an individual’s liberty in a free and democratic society. In some cases freedom of movement may be the subject of interference by a restraining order. The freedom to communicate within an individual may be the subject of a restraining order. In the context of blogs, as I mentioned in my decision of 15th June 2012, there are implications for the freedom of expression pursuant to the New Zealand Bill of Rights Act 1990. In considering the nature and duration of the order one must take into account whether or not an order and its duration are justifiable limitations upon the guarantee of freedom of expression.
 In this case serious aspersions have been made against Ms Flannagan’s character which are causing her distress and will continue to do so. Those aspersions will probably last throughout her professional life if allowed to continue. The “take down orders” that I have made have taken into account the importance of interfering with Ms Sperling’s freedom of speech as little as possible but to obtain sufficient ￼￼relief for Ms Flannagan. As in all cases of this nature it is necessary weigh the interests of parties.
 If Ms Sperling’s behaviour had been in “real space” and her communications been in the nature of letters or pamphlets posted upon a wall an order restraining her from doing so in the future for a set period of time would be realistic. However the new environment of the Internet has qualities associated with digital communications technologies that are paradigmatically different from those of the pre-digital paradigm intrude.
 Like the printing press which brought with it characteristics that were not present in scribal communications, digital communications technologies contain with them characteristics or qualities that are peculiar to the medium and underlie the message. One of those qualities is that of persistence of information summed up in the phrase “the document that does not die”. Whilst phenomena such as link rot or the takedown of web sites may provide a form of immediate relief, traces of the information will always be present especially if some of that information has been re-communicated or alternatively stored on the Internet archive.
 A restraining order will have a mitigating effect of this quality in the sense that by removing the information it will no longer be available for search engines and consequently any ranking will decline on search sites such as Google. I recognise, as does Ms Flannagan, that the “persistence of information” quality of Internet material will not remove the information entirely. A further problem is that with a limited term order, say for one year, it would be perfectly capable for Ms Sperling to repast the information again upon the expiry of the order and the whole process would commence anew. The problems suffered by Ms Flannagan would once again rear their head. In this respect it seems to me that there is justification for an order that would subsist for more than a year and the restraining or take down orders that I have made in respect of the various pages identified in the previous section should subsist until further order of the Court. In that way if Ms Sperling considers that there is justification for reposting the material she may apply for a discharge of the order under s 23 of the Harassment Act or for variation thereof under s 22.
Further, Judge Harvey ordered costs against the blogger…
 Miss (sic) Flannagan seeks costs. Under normal circumstances a self represented litigant is not entitled to costs but pursuant to Rule 4.17 of the District Court Rules 2009 a solicitor who is a party to a proceeding and acts in person is entitled to solicitors costs.
[I’ve left out paras 85 to 88 detailing why he declined Ms Flannagan’s application for costs of the previous failed 2012 action.]
 However Miss (sic) Flannagan is entitled to costs in respect of the current proceeding and I am prepared to award costs on a 2B scale pursuant to schedules 2 and 3 of the District Court Rules 2009…
 I order costs accordingly and that sum to be paid by the respondent to the applicant.
My personal view: This is a big deal.
So, is this how it is in New Zealand now?: If the ‘target’ of derogatory comments is determined enough, and can convince a Judge of their ‘distress’ at material about them published on the internet and that such (untrue?) comments and criticism may have a professionally deleterious effect on them, they can, eventually, gain a take-down and wide-ranging indefinite gagging order like this.
I note that Judge Harvey rejected the lawyer’s overreaching in two instances — claiming costs for the previous failed court action, and seeking a statement of retraction as part of her application for a restraining order. That said, there’s no doubt the lawyer had a significant ‘win’, undefended as it was.
But I find the whole thing chilling and unsettling. (You are, of course, entitled to your own opinion. From what I’ve read, it’s clear the lawyer, her husband and their supporters see it differently. Naturally.)
We can’t be certain, but reading the decision, it seems inescapable to me that this was a case where the Judge formed a view of the comparative ‘character’ of the parties. (See para  above).viz. The respondent — who offered NO defence, made NO submissions, and took NO PART in the proceedings, versus the applicant — who gave him “a large amount of information” with multiple affidavits swearing to the nature of her distress … and about whom he (amusingly, if you actually know any lawyers socially) says in the last sentence of his paragraph :
 … the use of that information and the post by Ms Sperling clearly continues the pattern of behaviour that she adopted alleging “con” activities by Ms Flannagan. It should also be noted that Ms Flannagan 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. [emphasis added]
I don’t know the blogger, Ms Sperling. I’ve never met her, not even spoken to her. We’ve corresponded, and I’ve read her comments here at ThePaepae.com and occasionally on her own blog.
She seems to me to be an intelligent person, given to passions, enthusiasms, fixations and the urge to ‘express’ — like most bloggers. She’s been through a firestorm of stress in her personal life over some years. Some of it has been dragged needlessly into the public eye (and that not of her doing) due to what I see as little more than prurient interest by some in the media. But by the look of it, she’s a fighter and she’s rebuilding from her previous challenges and set-backs, and trying to improve her life. I don’t whitewash her actions but I have empathy for her. As I do for the lawyer.
There’s no question in my mind that much of the blogger’s ‘output’ was tit-for-tat reactive. A good deal of it, she says, was in response to disgusting online attacks and abuse of her — much of it FOUL and published by anonymous ‘commenters’, as I observed — in the name of ‘truth’ and ‘justice’.
A supporter of the lawyer, using the pseudonym ‘Scrubone’, himself engaged in a lengthy vitriolic campaign of cyber-bullying and name-calling, flinging the blogger’s past at her and repeatedly calling her a ‘liar’, ‘insane’ ‘crazy’, etc. I would call his ugly course of action ‘harassment’ by any standard. To my mind Scrubone’s deeds were every bit as foul as those of which he accused the blogger in this case. Perhaps worse. It was ‘disgraceful spittle’, as I told him and his pseudonymous mates when they dipped into the comment stream here on last year’s post. Although after our interchange he went back and amended some of his posts, I observe that Scrubone continues to actively malign and demonise her to this day.
How do you disengage when things are broken?
This episode has probably been both a symptom and a cause. In my observation, the blogger did not respond well to what she saw as attempts to silence and intimidate her before this. (It’s a challenge. I understand that.) As I said in discussion about the first case:
Threatening lawyers’ letters are by their nature an aggressive act, in my opinion. Their deployment is almost always bound to raise the temperature, however carefully written.
But there’s an old saying: ‘If all you have is a hammer, everything looks like a nail.’
I have no doubt of the ‘harassment’ effect of repeated legal threats, correspondence by email and text, then the stream of affidavits, claims, statements and counter statements that follow filing an application with the court. Litigation can be akin to war with a suit on. For those who’ve not engaged in it, let me tell you, litigation is like being hunted by a predator. It’s very stressful.
Some people, including a male solicitor engaged by the lawyer in the first failed application for restraint, and the lawyer’s original (female) co-applicant, have apparently approached the educational institute where the blogger is studying, seeking to ‘raise concerns’ and curtail her studies. These same people complain about the effects of the blogger’s actions on their careers. Ironic. (I also see that as abandoning the high ground.)
I have met the lawyer Madeleine Flannagan and her husband Matthew. They appear to be sincere and decent people who, it seems to me, struggle with the two-edged sword of themselves living in the public eye in a small way — debating public morality and religious apologetics — and wanting to be seen as leaders in the Christian community and suitable candidates for financial support from that sector. They appear to me to be acting to vindicate themselves.
I said this last year to the blogger about the lawyer’s initial entry to this fracas:
It seems clear they were trying to PUT SOMETHING RIGHT, as they saw it. They were responding to your words and actions.
I strongly believe that’s the case.
… In my opinion, no-one goes to the lengths Mrs Flannagan, in particular, went to just out of spite. I just don’t believe that of her. Not at all.
Time to leave it, Jackie. Disengage.
If I may quote Voltaire … “A long dispute means both parties are wrong.”
It’s also inescapable that some of the blogger’s comments and statements were offensive (reactive or not) and her ‘campaign’ of criticism and denigration protracted and potentially threatening the lawyer’s reputation and livelihood. The lawyer faced the dilemma: if she left the comments and her unsuccessful Harassment Act application unchallenged, what impact might that have on her future career and employment prospects? Yet if she pursued redress and vindication, as she has, what impact would that have? Tricky.
You may wonder why I tend towards a contrary view to Judge Harvey, whom I admire. Let me explain.
It’s not just about feeling squeamish. I worry at the extraordinary censorship the judgement orders and its possible effect on MY OWN CIVIL LIBERTIES — specifically my right to free speech.
Reading the decision — which was thrust at me, as I disclosed above — I learned that there exists another indefinite restraining order in relation to someone else. (There’s the ‘precedent’ if there is one.)
Well, let me say this: There are people whom I’ve repeatedly criticised, even castigated — and whose actions and track records I’ve catalogued here on ThePaepae.com. I’m sure some of them would love to see this website and its content ‘swept clean’ and me barred from uttering their names, in this manner.
I’m not being fanciful. As I detailed in my post The peasants are revolting and elsewhere, the operators of the PropertyTalk discussion forum were intimidated by repeated ‘threats of legal threats’ into expunging whole threads of genuine ‘consumer warning’-type information about property spruikers preying on the public. Substantial censorship occurred —ex-Sponging, I called it, after the name of one hyperbolically sold subdivision whose promoters were highlighted in a discussion thread before that was ‘removed for consideration’ never to return. Likewise, the Richmastery thread — containing hundreds of posts about those now-bankrupt spruikers, their questionable claims and dubious marketing methods — was removed from view on PropertyTalk in a ‘clean up’ operation.
In a very real sense, that censorship-under-pressure by the operators at PropertyTalk was a trigger for me to set up ThePaepae.com, as a platform for publishing such important things and where carefully stated information and warnings would persist.
Coping with smears
Around the time I was detailing the questionable marketing methods of another bunch of internet marketing whiz-kids, a series of blogs (not blog posts — actual blogs) sprung up on the internet using my name and a series of unflattering keywords in an apparent attempt to smear me (see: Internet ninja cowboys … spoofing revisited). Is that reputation-endangering ‘harassment’? Well, yes.
But I bear the scars and bite-marks from those operators and others. I stand in the scorn of their sock-puppets. Those spruikers needed to be exposed.
My own approach when garbage is thrown at me is to address it directly, then go on ‘building’ my own reputation by contributing useful, positive material and interactions … which I trust the search engines will find more relevant. That’s not a path the lawyer in this case chose to follow, evidently. We choose to differ.
So, as you can imagine, given that background, I gave a very hard look at the ‘request’ I received from the lawyer in this case — that I ‘remove material’ from The Paepae. I’m disinclined to accede to any such broad request partly because I think she and her supporters have made substantial use of a right of reply here at The Paepae.
Put yourself in the blogger’s shoes: How many court cases (and appeals — even de facto appeals like this one with a self-representing lawyer) would you fight before you’d say,‘Meh, I don’t need this’ and get on with your life? The trouble is that certain people [snip] seem to be taking action to sabotage the blogger’s future — as noted above, citing their ‘concerns’ about her suitability for her new career. Such actions move from ‘seeking vindication’ to bitter vindictiveness in my book.
While I agree with Judge Harvey about the challenges we all face in the age of “the document that does not die”, his order prevents the blogger from (ever?) writing her side of this online, — even to the extent of saying that she herself FELT harassed, threatened and intimidated by the lawyer’s relentless communications: emails and texts, the stream of legal papers and affidavits accusing the blogger of all sorts of woeful actions and character deficiencies. That stuff has an emotional impact on non-lawyer people, believe me, I know.
And now, I guess, she’ll face demands for payment of ‘costs’.
As I read the decision (and I’m not a lawyer) the blogger is restrained from a right of freedom of expression online — or where she has moderation power. Would Judge Harvey similarly rule against a book spelling out her side of the dispute? Or a first-person account published in a newspaper or a magazine? Do you begin to see the problem?
I would NOT like to see the ‘take-down’, ‘harmful digital communications’ approach used in this case become widely-used. It seems draconian to me, personally, even allowing Judge Harvey’s careful consideration of the ‘weight of the interests of both parties’.
You may not agree with the blogger or her actions. You may see her activities as reckless, malicious vindictive and personally/professionally damaging toward the lawyer. Certainly Judge Harvey seemed to perceive them so, but let me ask you, even without allowing for her real sense of provocation:
Is this the way to deal with people who act that way? Really?
Perhaps it does seem right to you. For myself, reading this latest judgement in the context of the one last year, observing how the lawyer has learned from her previous defeat in court and adapted her approach, reminded me of the closing words of one of my authors Olly Newland in his book Lost Property …
‘If you can afford the huge costs …’ Olly says. Well, yes.
And what if you’re facing a lawyer representing herself, as in this case?
Another of my authors, accountant Mark Withers (Property Tax – A New Zealand Investor’s Guide) tells the story of a dispute he was in with the Inland Revenue Department on behalf of his clients. He informed the tax inspector they intended to take the department to court over the issue. “That’s all right”, said the IRD man. “We’ve got deeper pockets than you. We’ll just keep appealing it ’til you run out of money.”
As I mentioned above, the lawyer faced a dilemma. She made her choice. Using her professional expertise and better making her case for ‘distress’ this time, she outgunned her ‘opponent’ (who offered no legal defence) and she got her result: the indefinite suppression of someone else’s right to freedom of expression.
Is that really a ‘win’?
Who will speak for you?
Let me draw my (lengthy, sorry) comments to a close with this intense and discomforting poem from Martin Niemöller cited by the US Holocaust Musuem and others around the world:
First they came for the Socialists, and I did not speak out —
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out —
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out —
Because I was not a Jew.
Then they came for me —
and there was no one left to speak for me.
Then they came for the bloggers —
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, but will be moderated in this case, given the history. I will not host attempts at character assassination.
– Best wishes, Peter Aranyi © 2013 All rights reserved.
UPDATE 19 June: Judging from comments posted elsewhere, it seems Matthew Flannagan has taken unkindly to my inclusion of Pastor Niemöller’s poem, perceiving (wrongly) that I intended an ugly comparison between his wife’s actions and the Nazis. That wasn’t why I quoted it, as I explained to him today:
@Matthew Flannagan: I understand where you’re coming from with reference to the Niemöller poem. It is discomforting, awful, to think our actions _could be seen that way_. I didn’t cite it to offend you. I actually quoted it to express MY OWN CONFLICT which is: ‘Why should I speak up for this woman when so many “good people” seem to want to vilify her?’ Gulp.
This is a complicated and fraught matter as I think Judge Harvey’s two differing decisions reflect. I’ve struggled with it, hence the somewhat meandering, sometimes double-sided nature of my comments. I’m sure glad I wasn’t the Judge!
But I don’t feel I’ve been dishonest, I don’t think my readers are stupid, I don’t feel I’ve been unfair or maligned you or your wife, and I am (as I told Madeleine in my 7/6/13 email) willing to discuss this with you and her in person again if you wish.
As for you dismissing my honest opinion as ‘a crock’ — well, thanks for reading it Matt, I guess.
– Peter 19/6/13