Britain’s libel lawyer community are extremely excited about a radical judgement by a New Zealand judge which effectively has banned a troublesome troll for mentioning again the name of the person she attacked on the internet for the rest of her life.
The decision has been highlighted on the Inforrm blog (see http://inforrm.wordpress.com/2013/06/21/new-zealand-has-the-harassment-act-just-swallowed-the-law-of-defamation-steven-price ) as a radical, cheap way of avoiding expensive libel actions.
As the Wellington barrister Steven Price puts it: “Why sue for defamation when you can get an injunction by showing that a publisher has harassed and distressed you instead? For one thing, you don’t need to worry about all those pesky defences such as truth and honest opinion.”
As the Inforrm blog says: “The case was brought by lawyer Madeleine Flannagan )who was repeatedly savaged online by Jacqui Sperling, a friend she fell out with. Sperling called her a liar, a perjurer, a prescription drug addict, a vexatious litigant, and a fraudster, and labelled her incompetent, abusive and “bonkers”. She also published private financial and medical details about Flannagan.”
Jacqui Sperling
The case was undefended but the judge cited the New Zealand Harassment Act and ordered her to take down over 100 posts to be taken dow “unless and until the court permits reinstatement,”
madeline flannagan
It also forbids her from directly or indirectly mentioning Flannagan or her family online for the rest of her life.
These rather drastic measures do effectively curb her free speech – though they don’t apply to the printed word – she could still distribute leaflets across NZ attacking Ms Flannagan.
British interest is evidently combined by moves recommended by the Law Commission which want new take down orders to be enforced by judges where false allegations cause considerable harm to an individual.
I must say Ms Sperling’s attacks do sound particularly nasty. But one has to ask whether such a harassment ruling could be used say by politicians or people under sustained investigation for more legitimate reasons to get blogs taken down they don’t like. Or will it bring legal harassment tourism to New Zealand – if the blog happens to be read by people in Auckland or Wellington.
And will it be effective? It is almost impossible to remove any copy made of a blog by someone else – so some of the damning blogs may still be there despite Judge David Harvey’s ruling. On the other hand it does serve as a warning to some nasty vicious trolls that they can be stopped without going to the libel courts.
Westminster Confidential 
Pingback: Libel lawyers plan new way to silence the internet trolls » Alternative News Network
Most free blogs, like this one, are hosted in the USA by US companies and are therefore protected under the 1st ammendment, though non US bloggers are not protected themselves.
It would be an interesting confrontation. The blogger might face contempt of court procedings but the court would be unable to take a blog down without the cooperation of the blogger.
In an extreme case, the blog owner might be imprisoned but the blog itself might continue but without any consideration of the law as the owner who is legally responsible is no longer there to exercise editorial control.
LikeLike
My restraining order does apply to the printed word, the standard terms and conditions found in every restraining order which relate to the real (as in non-cyber) world are in my restraining order. The online restriction was simply a special condition.
As for a restraining order being a cheap way of avoiding or back dooring defamation, I disagree the point being made by that statement for the following reasons.
Either course would have been equally cheap for me given I am a lawyer who was self-represented.
I chose to file under the Harassment Act primarily as it, unliked the Defamation Act, took into account “that behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context” (s6(1)(a) Harassment Act 1997). This was important as the nature of the internet is that a snide comment alluding vaguely to something can be more easily understood but the readers of that comment as being connected other material that is more explicit published elsewhere especially when links or tags are used with it. Defamation law doesn’t lend itself so well to that.
Even if the statement is vague and appears trivial the impact on the victim of the campaign of harassment is still keen. The Harassment Act has the means to consider that.
To show that the conduct complained of was harassment I had to show that they were offensive. In doing this I had to get past the hurdle of s17 “A specified act cannot be relied on to establish harassment … if the respondent proves that the specified act was done for a lawful purpose.” Given it was (mostly) written words I was complaining about this was much like an exercise in defamation – the words had to be harmful and false and there had to be no legitimate basis for the respondent to be able to state them. In the first case the Judge found that one of the alleged specified acts offered by the first applicant could not be a specified act because while it was offensive and hurtful that the respondent had published it, it was true. There was no back-dooring the Defamation Act in that exercise – the lawful purpose defence in Harassment, when it relates to the written word, is basically a defence of truth or honest opinion.
The remedy offered was also a factor. A restraining order preventing future behaviour was of far more use to me given the nature of the problem than a mere strikedown order for past behaviour or damages – I new the respondent was in debt and this wasn’t about money.
Then there was the speed of hearing and the way the registry handles the file. An harassment application is served by the Court and is supposed to be heard within a matter of weeks from filing (this was true of the first case and it was true of the first hearing in the second case where the Judge then directed, with my consent, that the matter be referred back to the Judge who decided the first case. That Judge and I, between us, were not both available until about a year after the second case was filed.
LikeLike