“Crosby v Hager”: defamation proceedings used as a political weapon

“Crosby v Hager”: defamation proceedings used as a political weapon

I have just been through an eleven month defamation case, settled this week. It is a story worth sharing. Like similar cases in other countries, it shows how easy it is for a wealthy company or individual to use defamation action against journalists and writers, on the skimpiest of grounds, inflicting costs in time and money out of all proportion to the supposed harm caused by our writing.

The case arose following a feature article I wrote last year, revealing something that the National Party leader John Key had been keen to keep secret. When Key became leader at the end of 2006, following the publication of my book The Hollow Men and the resignation of former leader Don Brash, he pointedly told reporters that he would not be using the same political advisers as Brash. He went further in another interview and said that he didn’t get advice on things like media because he preferred to rely on his own instincts.

It was therefore embarrassing when I found out that, after just one week as leader, Key had visited Australia and sought a meeting with Brash’s most controversial advisers, the Australian political strategists and pollsters Crosby/Textor. He signed them up to work for him, not just on the coming election campaign, but immediately as his personal advisors on image, presentation and tactics. Key’s “natural” image, which had been complimented in the media, was actually being managed by the same wily and cynical Australian spin doctors Brash had used. The article outlined the company’s controversial reputation and described the partners Lynton Crosby and Mark Textor’s tactics in Australia, Britain and New Zealand. 

When the story appeared on 29 June 2008, National was furious. Key refused to confirm publicly that he was using the company while behind the scenes his media staff attacked me for doing the story. The day after the article was published I was invited onto Radio New Zealand’s Nine to Noon programme and basically repeated what I had written in the newspaper. For unclear reasons, I was sued over this interview (not the article) and the lawsuit came from Crosby/Textor co-director Lynton Crosby (not the other co-director, Mark Textor, who has mostly acted as the advisor for National).

Lynton Crosby did not deny that they had been quietly working for John Key, but instead took vehement exception to my description of his and Textor’s reputations. I had described how, in Australia, Britain and New Zealand, they had become notorious for a negative style of political campaigning that includes using public fear and prejudice to whip up support for their clients. I mentioned examples of their role in election campaigns that focussed on hostility towards minorities, such as refugees and gypsies; and the way they use focus groups to probe for potential fears and prejudices that can be reinforced and exploited politically. These comments were the focus of Crosby’s legal action.

But none of my comments were new — the only new thing was the revelation that John Key had chosen them as advisers. I had written about them in The Hollow Men, quoting from leaked copies of Crosby/Textor reports where they explicitly used focus groups to probe for ‘latent’ negative feelings on issues such as immigration to ‘leverage’ for political gain –  without being sued. Others had already written much harsher things about their techniques, in articles with titles such as “Lynton Crosby, the maestro of the dark arts”, “The Manipulators”, “Behind the curtain, a view to the wedge” and “The master of the dog whistle”. None of these had been sued either.

What follows is, I believe, a case study in how defamation proceedings can be used to attack someone and cost them time and money not because they have written untrue things, but simply because they have got up someone powerful’s nose. This is a risk that unfortunately exists for anyone who writes about wealthy and/or litigious people and says things that they may not like. I’d heard of cases like this, and I have had the ordinary legal threats that come to nothing, but this would be my first experience of being legally bullied.

The problem is that even with a weak case, a determined litigant can force someone who has annoyed them into long and expensive court proceedings. You and I couldn’t afford to do this without mortgaging the house. But anyone with the money to hire top lawyers and fund the many possible technical twists and turns of defamation proceedings can cost their opponent lots of money — even on a case that will most likely never get to court and, if it did, would most likely not succeed. The damage comes from the long and expensive process, not them winning in court. There is something seriously wrong with our defamation laws. 

Legal letters arrive

The first legal letter from Crosby arrived in early July 2008 from a lawyer named Ric Lucas, from the Canberra law firm Colquhoun Murphy. The company’s website says he “has developed one of Australia’s leading defamation practices [and] regularly advises and represents leading figures in politics, business and the media.” His letter was calculatedly intimidating and threatening, but also faintly absurd. It began:

 DEFAMATION OF MR LYNTON CROSBY
Dear Sir, We act for Mr Crosby. Our client has been grossly defamed by you in the course of an interview with Radio New Zealand broadcast on 30 June 2008.

The examples of the gross defamation were then listed. It seemed to me that they were things that had all been said many times before. For instance: “Crosby/Textor were ‘trying to focus the public’s mind normally on things to do with prejudice… attacks on refugees, dirty politics’; and Crosby Textor ‘find subconscious fears or prejudices and then work out lines which their clients will repeat and repeat and repeat to tap the most unworthy parts of the voters’.”

The legal letter said “Our client rejects every one of these false allegations”. The letter then made a curious demand: “Mr Crosby requires you to disclose your sources immediately.” The National Party and Crosby/Textor of course wanted to know who had leaked me their inside information that had appeared in my book and then in the article on Key’s use of Crosby/Textor. But this was hardly essential to allegations of defamation (there are special rules in defamation to protect sources) and added to my feeling that the legal action was motivated by more than seeking redress for the supposed defamation in the Radio New Zealand interview.

The letter went on, reinforcing my feeling that old scores were being settled:

It is particularly outrageous that you made no attempt to check any of these wild claims with Mr Crosby.  If any proof were needed of your vindictive, unfair and malicious journalism, this is it….

 These false public claims … are calculated to cause substantial damage to Mr Crosby’s reputation and hurt, distress and embarrassment to him personally.  
 
Accordingly, he requires that a comprehensive apology and retraction in agreed 8terms be provided within 48 hours.  He reserves his rights as to damages.  Failing such an apology our client intends to commence proceedings without further notice to you.

Australian politics are a rough and tough place, with plenty of colourful name calling and personal accusations. Crosby, former federal campaign director for John Howard’s Liberal Party, is as rough and tough as the best of them. He and Textor have had much harsher and wilder things said about them in Australia than I had done without commencing law suits. Yet the poor man was feeling “hurt, distress and embarrassment” about a morning radio interview in New Zealand. 

The letter ended “We note that this letter is not for publication”, a demand that has no legal standing and I am ignoring.

I thought carefully about issues of truth and honest opinion and discussed the letters with my lawyer, Steven Price. The main defences when accused of defamation are that what you said was true, honest opinion and/or responsible political discussion in the public interest. I felt confident that nearly everything I’d said was totally safe on those grounds. But live radio is different from a carefully written article: it is much easier to talk loosely. Looking over the whole transcript there were only two places where I felt I wasn’t on solid ground. One, which Crosby’s lawyers would hold up as a key part of their case to the end, was a slip of the tongue I made while talking about his co-director Mark Textor’s reputation. Here is the relevant part of the transcript of the 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. 

See what happened? I was clearly talking about Mark Textor and accidentally called him “Mark Crosby” (that is, Textor’s first name and Crosby’s surname). Minor slips like this happen all the time in live radio and if they were used for defamation actions it would keep hundreds of lawyers busy and clog the courts. None the less, this was held up as “calculated to cause substantial damage to Mr Crosby’s reputation and hurt, distress and embarrassment. I was happy to explain that it was only a slip of the tongue and we offered soon after to Crosby’s lawyers to correct this slip if they wanted. Eleven months of legal battle and expense later, the ‘settlement’ of the supposed defamation primarily involves me repeating that, as was obvious from the start, I was indeed referring to Mark Textor and not Lynton Crosby. (The other clarification I offered to make was that towards the end of the interview I had talked about personal attacks on the Labour Party leader, Helen Clark, being an example of dirty tactics in politics. I didn’t say I thought Crosby was behind these attacks  — which Crosby claimed in the defamation case — so I was also happy to clarify this as well.)

However, back when the letters first arrived the claims of “gross” defamation seemed so exaggerated and the “hurt, distress and embarrassment” seemed so fake that there was no way I was going to make the “comprehensive apology” that had been demanded — that is, take back everything I’d said in the interview (attacks of refugees, exploiting subconscious fears and prejudices and so on). I did not reply to the legal threats.

Crosby’s lawyer, Ric Lucas, waited a few days and then sent another letter (in the same theatrical terms as the first): 

Dear Mr Hager,

We refer to our letter of 2 July on behalf of Mr Crosby.
 Our client is extremely upset that you have made no apology nor attempted to undo the harm you have caused him….
 
A proper apology from you now would be belated, given the extent of the damage done, but would be some comfort to our client.

The letter said they had instructed a New Zealand media lawyer, Matthew McClelland, to begin court proceedings against me. They also hired the firm Chen, Palmer and Partners to help. On the same day they moved to sue Radio New Zealand as well. 

A private investigator arrives to serve defamation papers

In the late afternoon on 26 August 2008, a man named John Deal arrived at my door. He was a private investigator hired by Crosby to serve me with papers. These papers were Crosby’s Statement of Claim, which put a figure on the substantial damage to his reputation that, he asserted, had resulted from the radio interview. He was suing me for $100,000, plus interest, plus his legal costs, plus “such further relief as the Court in its discretion deems appropriate”. It was absurd and I was fairly confident that I would never being paying Crosby the $100,000. But I didn’t fully understand then that it is the process, much more than some future court judgement, that is used to inflict damage in defamation proceedings.

Crosby’s “Statement of Claim” contained nine extracts from the Radio New Zealand interview, most of which I would happily say or write again (albeit more tightly worded than a live interview) because I believe my statements and comments were well founded. Here, for example, are the extracts (a), (b) and (c):

(a) “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.”

(b) “The lines which you cross, the lines which make you notorious like they are, are ones to do with manipulation and deception and unreasonable secrecy.”

(c) “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.”

I had published evidence of exactly these things in The Hollow Men, quoting Crosby/Textor’s own written advice for National in the 2005 New Zealand election and other well known cases in Australia and Britain. However, the Statement of Claim said that I had made these and the other comments “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.” It then stated that Radio New Zealand 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” — this half being particularly silly since no radio station knows what someone’s going to say on live radio before it is said. On this basis, it asked the court to order that I pay the $100,000 and other costs and Radio New Zealand also pay damages and costs as the court considered appropriate.

Crosby has now settled the case without receiving a cent of damages or costs from me or Radio New Zealand. He has also effectively abandoned the great bulk of his claim. So you might wonder why we couldn’t just apply to the court to throw out the case in the first place. The law is ponderously unhelpful. The problem is that a judge, who may never have heard of Crosby Textor, could not be expected to chuck out the case just because I said it was ridiculous. For all he or she knew, in the absence of submissions from both parties, what I said might indeed have been grossly defamatory. But the court essentially has only two tracks: strike the case out as self-evidently unsound legally, or go through potentially years of legal battling before a judge or jury ever gets to assess its validity.

Once Crosby’s lawyers filed the papers, it was not an option to just ignore the case. If you ignore civil proceedings like this, the case goes on anyway and you probably lose and end up paying lots of damages and costs. So there was no option for Radio New Zealand or me but to get lawyers involved on our sides and waste a large amount of time, effort and money.

The defamation game

Defamation is a strange, rarefied activity. You might imagine that we only had to prove that what I said on the radio was true or honest opinion. Instead, the practice is that Crosby’s lawyer not only stated my supposedly defamatory words, but also (as their “Cause of Action”) listed the supposed meanings of my words, with these “imputations” stretched to sound as bad as possible. It was then these imputations (and not the words I actually said) that we had to defend and/or we had to argue over the shades of meaning between what I’d said and what they said I’d meant. Moreover, we had to provide precise “particulars” (specific provable facts) to prove each of these imputations.

The practical effect of this is that it took a huge amount of time to assemble the evidence. We had to track down the wording of specific election billboards, advertisements and speeches, some stretching back over more than 20 years, much of it in Australia and Britain, and then convincingly link these particulars to Crosby and/or Textor. Even though I did not expect the case ever to get to court, we would have lost by default if we hadn’t played the game by its precise rules. These rules included that we should file our Statement of Defence (in response to their Statement of Claim) within four weeks. We filed it with the High Court on 29 September 2008. But this was only the beginning.

On 10 October 2008, Crosby’s New Zealand lawyer wrote to say that Crosby had concerns about the “adequacy” of the statement of defence. He claimed the particulars were too vague and that the Statement of Claim was not set out in the correct manner specified in a recent Court of Appeal case. He insisted that we provide an amended Statement of Claim a few weeks later, with the threat that otherwise they would seek a court order forcing us to do so. More hurried work was therefore required — all of this occurring during the final two and a half months before the New Zealand general election. 

In November 2008 my lawyer produced a new and hugely detailed 30-page Statement of Defence, more than substantiating what I had said on the radio. On the very day this document was lodged in the High Court, 27 November 2008 — that is, when the election was over and we’d shown we were willing to defend what I’d said, but also we’d already wasted many resources on the process and were perhaps starting to sweat over all the cost — Crosby’s Australian lawyer sent through an offer of how we could settle the case. Their proposal: a grovelling apology from me. Ric Lucas wrote saying “My instructions are that my client will accept the following apology, to be published on Radio NZ website and kept there for at least 12 months.” 

He wanted us to say: “Radio New Zealand and Nicky Hager sincerely apologise to Lynton Crosby for the hurt and damage we have caused him.” The draft apology then got very slippery, seeking an apology for something I hadn’t said. The next line was to be: “In particular we acknowledge that it was untrue that Crosby/Textor engaged in push polling against a Labor candidate in an Australian by-election in March 1995″. But I had never said that Crosby Textor did push polling in 1995. It was Mark Textor who was connected to this push polling and that is what I had said. His other point, that Crosby/Textor wasn’t responsible for attacks on Helen Clark’s personal life, I had already offered to clarify. 

This was very significant. Already in November last year Crosby had backed down immensely on his original claims, only seeking an apology for these two minor points. From then on their strategy seemed to be to make as much as they could of those two minor points, seeking a groveling apology to hold up to the world. In essence, it was a major backdown that they didn’t want to look like a major backdown. The following months of legal battling now had even less point.

The draft apology widened into an apology to Mark Textor as well and was written as if my trivial slip of the tongue had been a “false allegation” causing “serious embarrassment”. I was supposed to say:

“Neither allegation was checked with either Lynton Crosby or Mark Textor. We accept their denial. The false allegations have caused them serious embarrassment and we regret them. We acknowledge that the comments we published could not be fair, when they were based on false allegations of fact.”

In other words, when we had painstakingly provided evidence that virtually everything I said in the interview was accurate, they wanted an apology where it would sound to the world as if I had seriously defamed them and they had been fully vindicated. To add injury to insult, Crosby also expected me to pay all his legal bills. I declined to make the apology.

And more legal games…

When they failed to get the apology, Crosby’s lawyers resumed trying to wear us down with legal process. The following month, on 5 December 2008, Ric Lucas wrote from Australia to assert that our revised Statement of Defence still did not comply technically with the rules covering defamation. His letter contained several pages of new technical objections to the form and substance of my Statement of Defence, claiming that my defence was embarrassing, improper and objectionable. He again threatened to seek a court order challenging the technical aspects of how my Statement of Defence had been written. Given that they had already backed down on all the substantial parts of my interview, this felt like nothing but tactical pressure.

Crosby’s lawyer had also upped the ante by informing us that Crosby would file papers under section 41 of the Defamation Act claiming that my interview had not only been defamatory, but also maliciously so (motivated by “ill will”). He said they would also file proceedings alleging that the opinions I expressed in the interview were not “genuinely held”. Together, that my comments had been made in bad faith and dishonestly.

As their proposed apology above has shown, Crosby and his lawyers were already implicitly accepting that their strongest ground in the case was my trivial “Mark Crosby” slip of the tongue. But these latest threats were signaling that they had numerous options for dragging out the case and costing everyone much more money.

My lawyer wrote back to Lucas and basically told him he had the law wrong. But the whole defamation case has seemed to be more about tactics than substance and right up until days before this week’s settlement Crosby’s lawyers were still threatening us with a new round of expensive process. The lack of clarity in defamation law makes it easily exploited by one party, dragging out the process by challenging the technicalities of pleadings.

Most defamation cases never make it through all the circuitous processes and reach the court room. Growing legal bills and exhaustion normally lead to some form of settlement between the parties well before court, with the party with the most money and thus staying power often in the strongest position. Early on my lawyer and I assumed that Crosby would pull out of the process before it reached the “discovery” stage, when legally we could demand to get copies of internal Crosby Textor documents that might provide further evidence of the sorts of manipulative tactics I had discussed in the interview. This is what happened. In the last few weeks they have negotiated their way out of the case.

The final settlement

To achieve the settlement, we have negotiated a small statement from Radio New Zealand and me to be placed on the Radio New Zealand website for just one week. The wording of the statement is a correction and apology for the two minor points we’d been happy to correct from early on in the process. It is nothing like the general and grovelling apologies they tried to get earlier in the process. They have not got an apology for the 95% of the interview where I discussed Crosby Textor’s controversial reputations — including manipulation, exploitation of racism, attacks on refugees and gypsies, tapping subconscious public fears and prejudices and other dirty tactics — and where I discussed their work for the National Party. They did not get acknowledgement of hurt, damage or serious embarrassment either, since I did not believe for a moment that I had caused these by a minor slip of the tongue one morning in New Zealand.

In other words, we mostly won. About 20 to 1 if it was a score. If I was ever going to be sued like this, I am pleased that the suer was a man of Lynton Crosby’s standing and that his case against me was so weak. I have happily apologised for my “Mark Crosby” slip of the tongue and the possible Helen Clark ambiguity, and even more happily not apologised for all the substance of the interview.

But, as I said at the start, the reason for telling this story is that, in another way, I didn’t win. They wasted large amounts of our time on legal preparations for a case that never should have occurred in the first place. This also required large amounts of my and Radio New Zealand’s lawyers’ time, with Crosby well aware of how expensive it is to use lawyers.  If I did not have a principled lawyer who was willing to do the whole case pro bono, and so remove financial pressures from the equation, I might have had no option but to make a demeaning and untruthful apology to Crosby simply because I couldn’t afford to keep responding to month after month of legal games.

Which means there is something very wrong with New Zealand’s defamation laws. The moral of this story is that anyone with plenty of money can cause considerable trouble and cost to someone they want to get at, even if the grounds for the defamation actions are weak. Defamation is a tool that can be used by any well resourced company or individual against people who have annoyed them or who they do not like. This has serious implications for journalism and public accountability — potentially chilling freedom of speech about the people who most deserve scrutiny and criticism — since the sad fact is that it is much safer for a news organisation to criticise poor people than rich and powerful ones.

These experiences illustrate that New Zealand needs 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. I don’t understand why the judiciary and legal profession, who should be most aware of this inherent injustice and the inequality of access to justice, are silent about a system that is so obviously broken and open to abuse. New Zealand might, for example, be better served by a specialised tribunal, with a mediation arm beneath it to broker agreements, that can move faster and keep costs down. What is clear is that tinkering with the current system won’t work. It is time to do something about it.

 

 

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

Payment of $100,000 damages     * No damages to be paid

Payment of his legal costs      * No legal costs to be paid

Mr Crosby’s initial legal letter demanded: “Mr Crosby requires you to disclose your sources immediately.”      * We simply ignored this absurd demand.

A “comprehensive apology and retraction”      * No comprehensive apology.

Apology for “hurt, distress and embarrassment”     * No apology for hurt, distress or embarrassment.

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 apology  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 apology 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 apology for this statement

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

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