UPDATED: Crosby v Hager: there is something very wrong with our defamation laws

An 11 month legal battle with political consultants Crosby/Textor during an election year reveals the trouble with our defamation laws

* Please see radio transcript and table at the end of this post

I have just been through an 11-month defamation case, finally settled this week. I am happy with the result – I won on all points of substance – but am also concerned that my and my lawyer's time could be wasted month after month on a case that from the start had so little merit.

From the first threatening legal letters, in July last year, I was confident that the case against me would fail. But I did not understand then that it is the process, much more than some future court judgement, that is used to used to inflict damage in defamation proceedings. Something is seriously wrong with our defamation laws.

Like similar cases in other countries, the story that follows shows how easy it is for a wealthy company or individual to use defamation proceedings against journalists and writers who criticise or annoy them. The result is quietly undermining freedom of speech. Here is the story. (I have written a long description of the case for people interested in defamation law.)

The case began in the middle of last year when I wrote a feature article in the Sunday Star-Times, revealing that National Party leader John Key was employing the notorious Australian political strategists, Crosby/Textor. Their work for John Howard in Australia, the Conservative Party in Britain and Don Brash in New Zealand had been controversial so it was illuminating to find that Key had chosen the same advisers. National was angry that the news had come out only months before the general election and Key refused to answer questions about the subject.

The following day I was interviewed on Radio New Zealand about Crosby/Textor's work for National, during which I repeated details from the article about Crosby/Textor's reputation. A few days later I received a legal letter on behalf of Crosby/Textor co-director Lynton Crosby claiming I had "grossly defamed" him. The letter demanded that I make a "comprehensive apology and retraction" within 48 hours. It also said – bizarrely – "Mr Crosby requires you to disclose your sources immediately." I checked that I was confident of everything I'd said in the interview and decided I could ignore the letter.

After more rounds of threats, Crosby's lawyers served defamation papers on me on 26 August 2008. Crosby demanded $100,000 in damages plus his legal costs from me for the "hurt, distress and embarrassment" he had supposedly suffered as a result of the interview. He also demanded that I sign a statement sincerely apologising for everything I had said about Crosby/Textor. He also sued Radio New Zealand, which, he said, had broadcast my statements "knowing them to be false or recklessly not caring whether they were true or false and/or with no honest belief that they were true" – an especially curious claim since no radio station knows what someone's going to say on live radio. In this week's settlement, Mr Crosby gets a brief apology on two minor points but I succeeded on every other point, including that neither I nor Radio New Zealand have to pay any damages or costs to Crosby.

My lawyer, Steven Price, responded to Crosby's August "statement of claim" by providing extensive detail of why the factual statements I made were true and the comments I made were honest opinion – truth and honest opinion being the main defences against defamation – and why they amounted to responsible political discussion in the public interest, which is also protected from defamation liability.

I had talked about Crosby/Textor's record of using "fear and prejudice", attacks on refugees in Australia, attacks on gypsies and asylum seekers in Britain and, generally, "manipulative politics" to achieve their political aims. Crosby sought apologies and retractions but, on all these issues of substance, we won. I did not apologise for any of this in the settlement statement and, indeed, they are all comments I will happily make again.

In other words, Crosby effectively abandoned the great bulk of his claim after we presented our response. I feel vindicated by the outcome but remain unimpressed that Crosby could use the sledgehammer of a lawsuit when his strongest complaint was a minor and obvious slip of the tongue.

My slip of the tongue occurred during the interview when I was talking about Crosby’s co-director, Mark Textor, being involved in push polling in a Canberra by-election (planting false information about an opposing candidate under the guise of conducting a poll). It is a well known and notorious incident in Australian political history. At one stage while talking about the push polling, I accidentally said “Mark Crosby” instead of “Mark Textor”. It was clear from the context that this was a minor slip (I've put the transcript below so you can see for yourself), but I offered from early on in the legal case that I was happy to clarify that “Mark Crosby” was not referring to Lynton Crosby. That trivial slip, in the end, was Crosby's strongest ground for the 11-month defamation case.

The other thing I have clarified in the settlement statement (and had offered to clarify from early on) came towards the end of the interview when I'd said personal attacks on the Labour Party leader, Helen Clark, were an example of dirty tactics in politics. I didn't say Crosby was behind these attacks – which Crosby claimed in the defamation case – so I offered to clarify this as well. Thus the only issues where Crosby ended up having any case were a trivial slip and a possible bit of ambiguity.

In order to reach a settlement, I offered to make a short statement correcting both these points and apologising to Mr Crosby for them. In contrast, Mr Crosby has dropped the lawsuit in relation to everything else I said about Crosby/Textor's activities and reputations. Crosby has also dropped his demands for damages and costs. Right up to the final settlement, his lawyers pushed for Radio New Zealand and I to pay at least some of his legal costs. But since we had done nothing wrong, we refused and they eventually dropped this demand as well. There were various other legal twists and turns as well, each taking more effort and lawyer’s time, that are documented here.

Thus, Mr Crosby has waged an 11-month legal battle and only got a small correction, offered from the start, for the type of minor slips that happen every day on live radio. I am left with the conclusion that the defamation case was essentially legal bullying, punishing me for publishing information that the National Party was trying to keep secret and discouraging me from writing more.

Fortunately the defamation case largely failed. It would have been galling to have to apologise or pay damages for telling the truth and engaging in important political commentary. But the case should never have happened at all. Here we had an Australian political operator, working for a political party that had reason to want to to tie me up or waste my time during the election year, able to use legal means to do exactly that. It didn't matter how flimsy the grounds were.

New Zealand's dodgy defamation laws are able to be misused as a weapon by anyone with the money to pay. We need completely new ways of dealing with defamation, so that substance rather than process win the day and wealthy parties cannot just wear down their opponents by mounting legal bills. The current system is broken. Are there legal professionals out there willing to try to fix it?


Here is the relevant part of the transcript of the 30 June 2008 Radio New Zealand interview:

Kathryn Ryan: Have you got some specific examples out of Australia or out of the UK that you think illustrates this, ah, organisation crossing a line that other parties don't here.
Nicky Hager: Yes, let me tell you a story from Australia. Mark Textor, who is the man who is John Key's main outside strategy advisor now, had a case in a Canberra by-election where he was using what's called push polling. This is where they get the pollsters not just to ask people what they think, but that plants ideas there. His pollsters were ringing up people and saying, about a candidate called Sue Robinson, would you be more or less likely to vote for Sue Robinson if you knew that she had supported abortion up the ninth month of pregnancy. Which of course is so outrageous that it was repelling people if it achieved the purpose they wanted. Sue Robinson hadn't ever said that. Mark Crosby [sic] was eventually sued in court because Radio National in Australia got hold of a transcript of what the tape of what they'd done, he had to pay the candidate $80,000 compensation and apologise, but she'd lost the election.

This schedule lists what Mr Crosby sought in the legal proceedings compared to what he got in the final settlement:

What Crosby demanded

Payment of $100,000 damages. Result: No damages to be paid

Payment of his legal costs. Result: No legal costs to be paid

Sources to be disclosed. Result: We ignored this absurd demand

A “comprehensive apology and retraction”. Result: No apology required

Apology for “hurt, distress and embarrassment”  Result: No apology required

Crosby also wanted:

An apology for and retraction of the statement: "the controversial reputation they built there is for closing down issues that don't suit them and instead trying to focus the public's mind, normally on things to do with prejudice and fear. There have been attacks on refugees, dirty politics."  No retraction or apology required for this statement

An apology for and retraction of the statement: “the lines which make you notorious like they are, are ones to do with manipulation and deception and unreasonable secrecy.” No retraction or apology required for this statement

An apology for and retraction of the statement: "They've made it... their speciality to do what they call a certain kind of focus group research where they don't ask people what they want or care about, but they try to dig deeper and find subconscious fears or prejudices and then work out lines which their clients will repeat and repeat and repeat, to tap, sort of, the most unworthy parts of the voters rather than the best."  No retraction or apology required for this statement

An apology for and retraction of the statement: “They are the world-renowned dirtiest players in this”. No retraction or apology required for this statement

An apology for and retraction of the statement: “In Britain for the Conservatives they ran a campaign which, although this was not core British Conservative policy, was attacking gypsies and asylum seekers”. No retraction or apology required for this statement

An apology for and retraction of the statement: "They weren’t trying to find out what people think and respond to it, which is a democratic process, they were trying to dig out ways of developing things, even from people’s subconscious fears and concerns, which they could use as attack lines. In other words, it’s a kind of manipulative politics.”  No retraction or apology required for this statement

During the live radio interview Mr Hager described Crosby’s co-director, Mark Textor, being involved in “push polling” in a Canberra by-election. During this Mr Hager made a slip of the tongue and referred to “Mark Crosby” instead of “Mark Textor”. It was clear from the context that this was a minor slip, but Mr Hager offered from the start of the case to correct it. Crosby demanded that an apology to both him and Mr Textor, saying that the push polling story was untrue.               No retraction or apology was made about Mark Textor’s involvement in push polling in the Canberra by-election.

A correction and apology was made to Mr Crosby in this week’s settlement that the words “Mark Crosby” were not referring to “Lynton Crosby”.

Towards the end of the interview Mr Hager talked about personal attacks on the Labour Party leader, Helen Clark, being an example of dirty tactics in politics. He didn't say Crosby was behind these attacks  -- which Crosby claimed in the defamation case -- so he offered early in the case to clarify this as well. A correction and apology was made to Mr Crosby in this week’s settlement clarifying that this part of the interview was not referring to him.

Crosby demanded that the settlement statement be placed of the Radio New Zealand website for at least twelve months. The settlement statement will be placed on the Radio New Zealand website for seven days.