I have received a menacing email from a Ms Sarah Bacon, a partner in the law firm Izard Weston. The firm acts for Fairfax New Zealand Limited, publisher of the Sunday Star Times. The email refers to my recent post The Hotchin Affidavits – Four witnesses swear that Amanda Hotchin did not speak the damaging words attributed to her by the Sunday Star Times.
Paragraph 9 of Ms Bacon’s email reads: “Your blog and the comments that follow defame our client, the Editor of the Sunday Star Times and Mr Marshall. Our client will not tolerate these false and defamatory publications. Our client expects you to immediately remove the defamatory material from your website (along with any cached material) and to ensure that no further defamatory postings are published.”
Paragraph 10 reads: “We also put you on notice that our client will be minded to take action against you if you draw any adverse inference from the fact that our client is unwilling and unable to engage with you on this issue in a public forum.” I have read and re-read the Hotchin Affidavits post and there is absolutely nothing in it defamatory of the Sunday Star Times, its editor or Jonathan Marshall.
The post begins with a factual summary of the material leading up to its publication. This included:
The publication of Reflections on Not Caring in Hawaii, posted by me on 16 May 2010. In it I quote from the original Jonathan Marshall story and am highly critical of Amanda Hotchin; The publication of I Receive and respond to an email from Amanda Hotchin, posted by me on 8 January 2001. In her email Mrs Hotchin claims that she did not say the words attributed to her by Sunday Star Times reporter Jonathan Marshall – “We don’t have to justify where we get our money from or what it is spend on to anyone. I don’t care what anyone says.”
- I then state that Mrs Hotchin has sent me the four affidavits, the contents of which I may summarise on condition that I do not publish or release them to anyone else or publish the names of the signatories. I have agreed to those conditions.
- I go on to summarise the content of the four affidavits. The summary is totally factual and accurate.
- I then ask the rhetorical question: Did Amanda Hotchin say the words Jonathan Marshall quotes her as having said or did she not? I conclude:
If she did say these words:
Then some at least of the public criticism which was directed at her after publication of the SST story will have been justified; She will have no grounds to complain about Marshall’s reporting; All four signatories to the affidavits will be liable to prosecution since it is a criminal offence to knowingly swear or affirm a false affidavit.
If she did not say these words:
Then she is entitled to an apology and retraction from the Sunday Star Times or to seek redress through the courts; Mr Marshall’s credibility as a journalist will be undermined as will the reliability of his reporting in this and other articles; The reputation of the Sunday Star Times for fair and accurate reporting will also be called into question.
- Here, as in every previous post on this topic, I take no position on whether Mrs Hotchin did or did not say the words quoted by Jonathan Marshall. I make no accusation against or criticism of him, the Sunday Star Times or its editor. I merely canvass the options.
- I go on to say it would be “entirely irresponsible” for a journalist to cite verbatim in a report material that he had not “written down or electronically recorded at the time” and that “there appears to have been no opportunity” for Jonathan Marshall to do so.
- I conclude by saying that the matter could be quickly resolved if the Sunday Star Times can “produce either Marshall’s written notes of the exchange with Amanda Hotchin or his recording of that exchange, if it indeed exists.” And I invite the paper to do so.
Ms Bacon refers to this invitation in Paragraph 8 of her email to me:
“Our client will not be goaded into defending its production on your website. It is not an appropriate forum and would be detrimental to its interests in the event that Mrs Hotchin did issue proceedings.”
*Ironically, in view of Paragraph 10 of her email, in which she says that her client, “is unwilling and unable to engage with you on this issue in a public forum” , much of her email takes the form of argument about my handling of the issue. In Paragraph 4 of her email she writes:
“You complain in your blog about ‘bad journalism’ yet you have made no effort to assess the integrity of these documents and have apparently accepted them at face value. In our experience, before the veracity of ‘evidence’ is capable of being accepted it must be tested: a witness’ credibility must be assessed, his or her objectivity and motivations considered, and the evidence analysed.” I entirely accept all of this, but a website is not a court of law. Nor can I ‘test’ what either Amanda Hotchin or Jonathan Marshall claim happened, since I was not present when the exchange between them took place.
- In a subsequent paragraph, Ms Bacon says: “The matter is what it has always been: a contest between Mrs Hotchin’s version of events and Mr Marshall’s version of events.”
Again, I entirely agree. But at the moment we have “evidence” for only one version of those events, Mrs Hotchin’s. Other than in his original story, we do not have Mr Marshall’s version of events, his “evidence”. The Sunday Star Times has already publicy stated that Mr Marshall has its ‘full support’ and that it stands by his story. But without access to his notes or any recording, that is a matter which we are asked to take on trust.
- Elsewhere Ms Bacon notes that Izard Weston have sighted the affidavits and expresses surprise that I did not “call into question the objectivity of the deponents.” Since, before sighting the affidavits, I had given an undertaking to Mrs Hotchin not to identify the deponents, I could not single out any one of them for comment.
I accept that this is not an ideal state of affairs and it has produced a great deal of debate in the comments on the blog. Should the Sunday Star Times wish to do so, it could presumably publish the names of the deponents itself. It may, like me, have very good reasons for not doing so.
- Finally, Ms Bacon says that, “The February Blog (like your blog of 8 January 2011) is sympathetic to Mrs Hotchin. It does not contain any apparent balance.”
I do have some personal sympathy for Mrs Hotchin. She has been vilified in the press, on radio, television and in blogs for circumstances which are not of her making. But that sympathy has not extended to my claiming that her version of what was said in her exchange with Jonathan Marshall is true or that his is not. Nowhere have I said that. As to balance, this is how I referred in Reflections on Not Caring in Hawaii, to Mrs Hotchin’s reported statement to Jonathan Marshall:
“It really is quite an extraordinary statement, exemplifying as it does all the characteristics of Level 1 moral development – absolute selfishness, lack of conscience and indifference to the welfare of others. I don’t doubt for a moment that these people love their children and are kind to animals. But the misery which their actions have brought to thousands of ‘mum and dad’ investors seems for them to fall into the category of ‘long-distance impersonal harm’, all the more distant from a lounger by the pool in Hawaii.”
A similar view was taken and continues to be taken in comments to the blog, an overwhelming majority of which are fiercely critical of Mrs Hotchin. If there is an overall imbalance on the site, it is massively to her disadvantage. It may also be worth stating here that I have written highly critical posts about coverage of the Hotchins by TV3’s Campbell Live and the New Zealand Herald. Neither organisation has complained. I can actually find no criticism of the Sunday Star Times’ reporting of this issue anywhere on my site.
- *Over the last 24 hours I have read everything I and contributors to the site have said about the Sunday Star Times, Jonathan Marshall and the Hotchins. Some commentators’ views are forcefully expressed, but none could be regarded as exceeding ‘fair comment’. If Ms Bacon can point to specific examples of defamation of her client, I will certainly take a second look.
- *Finally, Ms Bacon’s email is headed “Not for publication. Confidential to the recipient.” I have chosen to ignore that advice. The Sunday Star Times is a national newspaper with a circulation massively bigger than my website. It has a large and powerful voice. If it is unhappy with what is said about its content or its writers, it has the opportunity, not available to the average citizen, to make a public response which will reach a large audience. Instead, in this case, it has chosen to send me a lawyer’s letter, marked “Not for Publication.” My response is that I am not prepared to be bullied or intimidated, and certainly not in secret.