image: shake & stir theatre co (click)
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
image based on justbkuz.wordpress.com
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.
[4] 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. Continue reading →
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As some of you may know, I’ve worked as a radio journalist over many years, and got my ‘skills and training’ (that’s just a wee inside joke) with Radio New Zealand, first covering local news (2ZB), then network news (National Radio, Morning Report and Checkpoint etc) then in the Parliamentary Press Gallery.
