So… it’s not just me who feels uneasy about aspects of the recently-released blogger restraint & gagging order I discussed in my post ‘Is this what we want? Internet ‘take down’ and indefinite gagging orders?‘.

Steven Price is a media lawyer, a law lecturer at my alma mater Victoria University of Wellington, and a legal thinker whose blog I read now and then. He’s smart.

In an article just published at the Inforrm (International Forum for Responsible Media) Blog, with this scary title: ‘Has the Harassment Act just swallowed the law of defamation?‘ he shares his ‘take’ on Judge David Harvey’s Decision.

Steven Price’s article calls it ‘a radical judgement that bypasses defamation law’ and the restraint order ‘a whopper’ before concluding (as I do) that the take-down order would probably also be granted under the Law Commission’s proposed cyber-bullying regime. Fair enough.

But when I spoke to him about it briefly this afternoon, I think it’s fair to say neither of us felt so sure about the indefinite and very broad gagging order. To me, as I said, and as Jay said here and following, that feels like a step too far. (Tip of the day: Never try to get legal advice from a law lecturer.)

Has the Harassment Act just swallowed the law of defamation? – Steven Price

… At least one judge has held that this requires an examination of the law of defamation to see whether a defence of truth or honest opinion might be available, and warned that harassment law should not be used to undermine the high threshold for an injunction in defamation cases: B v Reardon [2000].

As noted, Sperling (pic) didn’t advance any defence. But I couldn’t help but notice the plethora of issues that this case would have raised in a defamation context.

Hmmm, I thought, some of those statements look like they might be protected by honest opinion.
And: I’m not sure there’s a clear defamatory meaning for one or two others.
And: isn’t there a case that one or two of those allegations might attract a qualified privilege defence?
And: should we be troubled by the fact that the judge doesn’t have to make a finding that these harassing smears are untrue?

Judge Harvey knows the New Zealand Bill of Rights needs to be factored in. He assures us he has:

“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.”

But he gives us little sense of how that justification process was conducted, except in his analysis of the appropriate duration of his take-down order.

And that take-down order is a whopper: not only does it order Sperling to remove dozens of posts unless and until the court permits reinstatement, it also forbids her from directly or indirectly mentioning Flannagan or her family online.

That seems to prevent her from discussing Judge Harvey’s decision, for example.

This is a long way from the courts’ great reluctance to grant injunctions affecting free speech in most other contexts.

But there is something to be said for that. The law of defamation is byzantine. It would not offer most people an easy remedy here.

There’s much evidence that Sperling’s posts were malicious and harmful, and they are now banned. …

Read Steven Price’s thoughtful article in full at The Inforrm Blog.

– P