Late this afternoon, Chapman Tripp, the commercial law firm, acting on behalf of their client Stephen Richard Thompson, requested the removal of two posts from the What if? Dunedin website.
Both posts have been removed.
The website owner unreservedly apologises to Mr Thompson for publication of this material in previous weeks.
An apology with account of steps taken to remove the material will be forwarded to Mr Thompson via the solicitors.
Elizabeth Kerr
Site Owner
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Posted by Elizabeth Kerr
The What if? Dunedin website https://dunedinstadium.wordpress.com/ is a blog about the social and built environment of Dunedin New Zealand.
What if? Dunedin... 
Goodness gracious me, people are awfully quick to express their sensitivity via lawyers.
It must be very hard for you as site owner to guess which posts contain material that will hit a sensitive spot.
The website fosters free expression and strong opinion on topical matters in public domain.
The websites that do ‘serious’ via social media are called The Fifth Estate, well, in UK etc.
I expect you meant to write “Some of the websites….”, unless of course nowadays all serious matters via social media gets the label The Fifth Estate.
Fair enough. Unlike the ‘4th Estate’ the fifth is citizen directed, therefore not bound by established protocol.
This is.very ANNOYING.
Plead the 5th.
The Commerce Commission indicates it is serious. (Link)
Pronouncements at the National Business Review are anticipated.
The horses are getting restless, perhaps they were better at anticipating the coming storm than I was prepared to give them credit for.
I suppose it is important these days when a person is applying for a new position, that their prospective employer can’t google their name and find “information” that contains a high proportion of imaginative narrative. One would prefer Search to give results that are strongly correlative with one’s cv.
The Otago Chamber Of It said in a Star column they can check Facebook on job applicants. Very little can be constructed to present the unfailingly positive.
Most CV’s appear to be imaginative narrative these days – so what’s the harm with a bit more?
Why don’t we see any of this conflict and tension arising from the operations of Network Waitaki?
Could it have something to do with the fact that its directors are elected by that network’s consumers?
Q. Why is Aurora subject to the scrutiny of Commerce Commission’s ‘price-quality’ regulation, while Network Waitaki is not?
A. Clue. One is trying to extract as much as it possibly can from its consumers.
The other as a consumer-owned trust is trying to supply power as cost-effectively as possible.
The relative states of the condition of the assets of both networks soon reveals which is the better ownership model.
Aurora is one of the worst operating networks in NZ.
Network Waitaki is one of the best.
Could it be that the two items hit the truth? I suspect that there is a day of reckoning not far away, and that there may well be some blood on the ground.
I see in today’s ODT three men guilty of one of the country’s biggest poker machine frauds.
Wasn’t there an Otago connection in there somewhere ?
Yes.
What’s poker?
You know.
I am still working on the implications of the Bill of Rights Act with regard to how it might protect free speech. I think the Law Commission should be as well. It’s actually quite hard and expensive to make a case for defamation stick, especially if you are a public figure and even more so for elected reps. But it’s extremely easy and cheap to shut people up by threatening them.
An example of the ‘muzzling’, which is currently sadly the norm, is that DCC Standing Orders say speakers at meetings must respect the integrity and impartiality of staff. So an assumption is being made that staff ‘integrity and impartiality’ exists in the first place. This makes anything even approaching ‘whistle-blowing’ a breach of Standing Orders!
Another example is public forum speakers not being permitted to criticise councillors or staff. This is weird because you can make such criticisms in the public domain, as part of public political discourse – you just can’t say it to their face at a meeting! Where IMO is it most in the public interest to say it.
Changes are needed. No wonder there have been cases of long-term, serious fraud which were ‘open secrets’ for years.
Illogical, upside down and back to front: “Standing Orders say speakers at meetings must respect the integrity and impartiality of staff.”
“Staff should at all times conduct themselves in their roles with integrity and impartiality. Where this is the case speakers at meetings must respect them. Should they deviate from these requirements they can expect to endure criticism and searching questions without whining.”
Which means the questioners cannot whine.
“In beer and food we proudly stand”
Slogan, an hotel.
Michael Swann. Who was he again?
An unrepentant crook who got let out of prison too early.
He is a reminder of why we need a law change, so that those who have squirelled away millions in ill-gotten gains need to stay behind bars until they fess up to where it all is hiding.
I’m sure the SDHB would have had a much better outcome by now were this the case.
It is to be hoped that Mr Thompson will feel suitably exonerated with the unreserved apology from the ‘What If’ website along with the removal the material that offended him.
Let us hope that this will help remove any reputational damage he may have suffered, and enable him to now focus better on salvaging the enormous reputational damage that both Aurora and Delta are mired in.
Aurora/Delta are in a strangely privileged space. They should be more directly answerable to their owners, the ratepayers of Dunedin City. However there is a cosy buffer around any accountability which the DCC has happily provided, while it applies almost zero effective scrutiny to the operations of those sister companies which it owns. As long as the multimillion dollar dividends have been forthcoming, no questions have been asked. It has been a cocoon of impunity.
Unfortunately that lack of scrutiny has spawned some appalling liberties, and shockingly incompetent business decisions being taken both by the directors and management of A/D. Delta has managed to lose heavily on its forays into property investment and subdivision development contracts. It has lost many major regional maintenance contracts. It has attempted to shore up its lack of competitiveness by excluding other independent contractors from providing services to consumers, and has run foul of the Commerce Commission in the process.
And throughout this era of gross incompetence and the ‘run-to-fail’ policy of Aurora’s electricity network operations, it has chosen to reward its increasingly large number of managers with multimillion dollar salary increases. What ever would we be paying them now if they had been doing a half-decent job!!
The irony here is that were A/D to have been a publicly listed company, shareholders would have been demanding heads to be rolling long ago. In this case, A/D would have seen enough directors and managers rolling heads to have given more than a few games at a 10 pin bowling alley.
DCC and Dunedin ratepayers must start to think hard about where Mr Thompson’s new direction for the separation of Aurora and Delta is taking them. The ownership model has proven itself over 20 years to be serving those at the helm extremely well, while leaving the network in a perilous state.
Aurora with its billion dollar asset ‘renewal’ program is probably now insolvent.
Delta doesn’t know the meaning of competitiveness, yet remains the ‘preferred’ contractor.
And the show looks set to continue. Nothing has changed, except for a duplication of directorship and management roles in the respective companies.
As long as we don’t demand action, the largesse with public money will serve up more of the same.
You obviously read this website Mr Thompson.
Perhaps you might care to provide us with some worthwhile answers.
With the Commerce Commission bearing down and with power consumers, ratepayers, and councils not at all fooled by the Aurora/Delta gloss, we can expect a raft of formal complaints and submissions to ComCom and other bodies seeking a thorough investigation. We’ll still pay for the disaster that is the clanking chain of irresponsibility known as Aurora/Delta/DCHL/DCC – but as nick suggests we need to move on…. with a new model of ownership for our lines company and with sound democratic governance so the wide boys have no role, no influence and no say in the future of our utility.
As I have said previously, the major problem with defamation in this country and a couple of others is that the burden of proof (bizarrely) rests with the defendant, and the critical evidence required to sustain this is possibly in the possession of the plaintiff and/or their associates. Ireland in particular suffers in this regard and it was a major contributory factor in the pillaging of the place by a small number of people, who subsequently got away pretty much scot free.
Legal sanction against corrupt practice and organised dishonesty, as has been observed on this site, appears to be usually only applied reluctantly by the authorities. One might uncharitably suspect that this is because it may be in the gift of those who are associated with those who are to be proceeded against. ‘Business networking’ is not a random process. It actively targets those individuals who have a capacity to increase opportunity and reduce risk – or so I was told in my formal business education.
There are reports that the effective ‘capture’ of a regulatory agency by those who it is supposed to be regulating by placement or networking of key individuals within it may occur in some seven years. The path to neutralisation of terrorist organisations by security services proceeds by the same ‘penetration’ methods over approximately the same timeframe. In my view this timespan is quite optimistic. If key placements can be arranged by networked individuals there is surely no reason why a potentially inconvenient regulatory agency cannot be neutralised from the outset.
It is for this reason that British civil servants in India and in Britain were historically employed for life straight out of University and given very generous pay and pensions (that could be revoked) – It, and its associated culture, had the primary purpose of avoiding such penetration. The UK now, and since Thatcher’s time, has a ‘revolving door’ civil service, with much comings and goings to and from business – the outcomes of this on regulatory effectiveness have been predictable.
Application of sanction thus usually only comes after public pressure, and defamation laws of this ‘reverse burden’ type make it difficult to give such public pressure any sort of ‘edge’. The recent fire in London, may well provide that sort of edge despite such defamation laws – at a considerable human cost, but given the network of ‘stakeholders’ and the number of corporate cutouts and cross-responsibilities revealed by The Guardian today, I would not be holding my breath in anticipation of individuals ever being held responsible for that particular fire bomb – Remember Pike River & CTV?
The United States (sensibly) has its defamation burden the other (normal) way around, and even more sensibly recently passed specific laws to stop the increasingly regular practice by well-heeled individuals and companies acquiring and ‘importing’ judgements from jurisdictions such as ours. However its regulatory agency revolving doors seem to spin even more freely than our own do – with predictable results.
Rob Hamlin: Interesting comments about ‘the burden of proof’ in defamation cases in NZ, which I will admit I did not, at first, understand.
When I looked up the idea of ‘burden of proof’, https://en.wikipedia.org/wiki/Burden_of_proof_(law)
it seems that the issue here is presumption of innocence being a generally accepted legal principle. So if someone accuses me of doing something wrong, then the law begins with the presumption of my innocence and my accuser has to prove his contention.
But, in NZ law, with respect to defamation, it seems the reverse is the case and that there is a presumption of guilt. So if someone accuses me of defaming them, the law assumes that I am guilty and it is up to me to prove my innocence with a convincing defence.
Have I got this right?
I think it’s important that people (even me!) understand this clearly because public opinion could eventually lead to a law change for the better.
The law has its parallel in Parliament. A member may refer to another member as, for example, an idiot. If the member so referred to takes “offence” then the member making the remark must withdraw and possibly apologise for the remark – despite it being palpably obvious that the member was an idiot.
It makes it a joke when the comment has been made and the withdrawal of the remark gives an opportunity to gain more publicity in the process.
It is more than time however for a public discussion on the bizarre aspects of the laws of slander and libel in NZ.
Wasn’t it true that the Marquis of Queensbury left a note at the club of Oscar Wilde accusing him of being a sodomite? The ensuing trial was the result of Wilde taking Queensbury to court to rebut the comment. But it became obvious that Wilde was indeed a sodomite which led to his subsequent trial on these charges. So the original comment was found to be true and not a slander.
The difficulty here is that often the person who may be the subject of libel or slander has huge resources behind them to browbeat or bully a person who is not only pointing out the truth but is exercising their right to freedom of speech. That is where truth is often defeated.
The good thing in a small country is that a substantial body of people know the truth and are potential witnesses, many of whom can’t be paid off.
Thus people deciding that the mismanagement and questionable overriding affiliations for Aurora/Delta are too strong a diagram will step up to make official, factual and grounded yet spirited complaints to the bodies with investigative powers and jurisdiction over the companies and the individuals responsible to the present day.
I suggest few people making complaints are unlikely to leave things to idle speculation where names and doings would escape scrutiny. The thing will open up like a Lotus blossom.
The essence of the two removed posts, assuredly written by CD, has been strong opinion based on fact. A timely snapshot and freely expressed. Defamatory or not, was the question this week.
Of course, editorially, we checked all facets of the writing including media items and reports cited, all readily available in public domain – before airing the writing. Much of which cannot be misconstrued. These items and links can be reproduced because they are in Public Domain. We have no hesitation to do so.
Sagely, for this website, there is always material in reserve, kept for higher scrutiny by authorities should the case arise.
We think the level of independent scrutiny required for Aurora/Delta/DCHL is HIGH.
The lawyer reading this comment will know how high.
More (highly) paid work for them.
http://bytesdaily.blogspot.co.nz/2011/10/political-moments_16.html
“This reminds me of the story I heard many years ago that a Member of Parliament described the Member for Blaxland as having the brains of a sheep.
The Speaker: “Order! The Honourable Member will withdraw that remark.”
MP: “Very well, Mr Speaker, I withdraw. The Member for Blaxland does not have the brains of a sheep.” “
Diane,
The Congressional report ‘RECOGNITION OF FOREIGN DEFAMATION JUDGMENTS’ available via the link below summarises the situation pretty succinctly. New Zealand is a potential source of the sort of judgements that are relevant to this report:
https://www.congress.gov/congressional-report/111th-congress/house-report/154/1
Much thanks for this. Quoting: “These and related First Amendment doctrines reflect “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-
open.””
Obviously, a clear-cut need for NZ to improve its defamation laws if it wants to improve its local government – and get many other public benefits, such as avoiding the creeping increase of corruption – by making whistle-blowing in the public interest more of a right to free speech than a reason to fear incurring severe financial penalties for defamation. Or even the worry of being threatened with defamation.
Am feeling particularly frustrated at the moment because I went to the DCC with a public forum submission saying I had serious doubts whether they were complying with the law. And got NO RESPONSE WHATSOEVER from the elected council, except for a █████ letter warning me off.
And am not even sure whether I am ‘allowed’ to make such a public comment as this or whether this site is ‘allowed’ to post it. There’s certainly no personal benefit for me but there seems to be possible personal risk.
Certainly, my hopes for any improvement are via changed central government policy and law changes. I don’t expect any councils to voluntarily relinquish the power they currently seem to have to ‘interpret’ the law any way they want and so do pretty much anything they want.
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{Moderated. Word redacted. No names are mentioned here. ‘Strong opinion’ is still allowed at this website for public debate on a process or position. If the public forum had been used to critique a position or process, not a person, this would be defendable. Council meetings are not a court. At Council, in the absence of an educated ‘Speaker of the House’, there is less likelihood of analysis and a balance being struck for presenters at the forum. -Eds}
I applaud the editorial decision to publish the black-line style of redaction. This is in itself informative, as opposed to simply noting that a post has been “moderated”.
In time we may all learn which are the “thin-skin” triggers and adopt appropriate circumlocutions.
Moderation including redaction is at the discretion of Site Admin and does not necessarily indicate a trigger word any more than it may indicate removal of a questionable or potentially sensitive paragraphic or regrettably insinuating context. The website is not here to defend the potentially actionable writings of contributors. As nice as that would be on the day a substantial win at Lotto would allow.
I think that this quote from the opening preamble of the Congressional report is particularly relevant:
“The First Amendment to the Constitution limits the liability of authors and publishers under state defamation law by prohibiting injunctions against defamatory statements in nearly all instances,\1\ and by restricting the circumstances under which a plaintiff may recover damages for defamation.
The First Amendment limits liability in three key respects.
First, it renders non-actionable a defamatory statement of opinion that “does not contain a provably false factual connotation.”\2\
Second, it requires the plaintiff to prove the falsity of a defamatory statement.\3\
Third, it requires the plaintiff to prove fault, with clear and convincing evidence, by showing actual malice or negligence, depending on
the subject matter of the statement and whether the defendant is a public figure.”
The US seems to have no real issues with people being seriously defamed. Thus these requirements seem both reasonable and workable – as they have been over 200+ years. Plus Congress, which usually works with the type of Mr. Big who are so fond of libel bullying, swiftly acted on this report to put a stop to libel tourism. Clearly, even they could see the major threat to US public welfare that it represented.
I do not think that Elizabeth would spend nearly so much time cuddling the ‘great and the good’ if these rules also applied here. The DCC’s legal liability insurers might not have taken that hit a couple of years back either.
As this is the First Amendment to the US Constitution, and is specifically designed to override state law, it seems that they had a major issue with this ‘thin skinned Mr. Big’ problem, and addressed it effectively by overriding state-based English common law, quite early on in the history of the USA.
Note that the amendment makes it particularly difficult for public figures (not only politicians) to sue those who ask awkward questions or make awkward observations based on ‘inconvenient’ analyses. Pity the poor Irish who are not so protected in their public affairs – and us too.
To take a hypothetical and bizarre example: let’s say that a publicly funded American mining company had paid US$20 million to take over from a bankrupt private company, a useless unworkable blown up mine full of recently created corpses, and had then done nothing to either reopen the mine or to get the the victims’ remains out, and had tried hard to seal it up permanently with bodies in situ.
Were the company to try to use US law as a libel gag to shut down public comment, it would be up to them to prove in court the falsity (and malice) of a statement made by a bereaved family member that these bizarre actions were only consistent with them being agents, who were deliberately acting on behalf of others in order to deploy large quantities of public money in a way that would prevent information relating to the explosion, its causes and its aftermath coming out into the public domain. That they were doing this primarily to neutralise a threat to the interests and liberty of a group of well-connected individuals inside and outside of government who had systematically acted to create a lethal situation for the victims as a by-product of activities that were focused on their own personal financial gain.
Given the bizarre nature of its actions, and the context within which they occurred, the hypothetical American company in question might struggle to prove the falsity and malice of these claims under the conditions created by the First Amendment – and now they would not be able to import a libel gag based on a reversed burden of proof from a convenient overseas jurisdiction either. Attempts to do so might well be highly counterproductive.
Were this to happen in New Zealand by contrast, the bereaved family member would stand no chance in court, as the evidence that would be necessary to actually prove their perfectly reasonable case would be safely sealed away and out of their reach – either in the mine, or in the records of the plaintiff.
Thank you Rob. A very clear run-down of libel law here vs the US.
Next time any NZ politician proclaims dedication to “transparency” – “Does this include working energetically towards changing libel law?”
Politicians and bureaucrats plus many businessmen are aware of the “rules of the game” that allow these situations to arise in New Zealand. It is not strange therefore that there is little pressure to change the law in respect of defamation. The hypothetical case as outlined by Rob is a classical case of chasing the tail that belongs on your own rear end. The fact that there is no justice attached is of little consequence so long as the dead don’t speak.
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{Moderated. -Eds}
Interestingly it will be one to watch once Cr Lee Vandervis gets his case of defamation against Mayor Dave Cull into the courtroom. That will be the proof of the situation as there is little doubt in most laymen’s minds of the facts of the matter, firmly embedded in the TV Video. Maybe Dave Cull is away in France as we speak to see if there are any surplus guillotines available. He may need one if he is to survive to win the presidency of the LGONZ for which he is a candidate.
See new post for an update, (1.7.17) LGNZ, don’t wish ‘his lordship’ on New Zealand #VoteRachelReese