By Peter Griffin 14/06/2016 13


We all know the blogosphere can be a brutal place. While we’ve become desensitized to some of the mud slinging and smearing that goes on in blog posts and their comment sections, some people forget that the online realm is still subject to the law.

Prof Boyd Swinburn
Prof Boyd Swinburn

Whaleoil blogger Cameron Slater and lobbyist and PR consultant Carrick Graham had a reminder of that yesterday as three public health experts began defamation proceedings against them in the High Court at Auckland.

University of Auckland professor Boyd Swinburn, University of Otago professor Doug Sellman and tabocco control advocate and Pharmac advisor Shane Bradbrook allege a “campaign of deliberate and sustained defamation”, on the Whaleoil blog over several years.

Just plug “Boyd Swinburn” into the search bar on Whaleoil and you’ll see what has so irked the researcher and his colleagues. To be repeatedly labelled a “trougher” and in the case of Prof Swinburn “2013 trougher of the year” would appear to be pretty insulting.

The Urban Dictionary describes “trougher” as: “a person who uses public coffers for personal, political, or monetary gain”.

One of numerous Whaleoil blog posts to label public health researchers "troughers".
One of numerous Whaleoil blog posts to label public health researchers “troughers”.

But is it defamatory? That and other smears and claims made on the site will no doubt get an airing in court. I haven’t seen the statement of claim, but I can imagine those sort of blog posts will be cited as evidence.

As I wrote at the time, the 2014 publication of Dirty Politics revealed via leaked emails, the extent to which Cameron Slater and a tight group of  lobbyists and spin doctors had worked together to attack the work of public health researchers.

Cash for comment and New Zealand's MOD squad

Last year, Carrick Graham popped up unrepentant and gleefully continuing his lucrative work.

Carrick Graham still gunning for public health researchers

Graham even had a picture of Prof Swinburn on his office wall – the key target on his hit list.

I can’t recall a similar recent case of scientists taking defamation proceedings against a blogger, or a journalist for that matter.

Everyone should be entitled to free speech, but when exactly does name calling and insinuations cross over into defamatory statements that damage someone’s reputation?

This will be an interesting case to watch.


13 Responses to “Researchers go after blogger and lobbyist for defamation”

  • One view of this would be that its not a good look. Many would argue that if you don’t like what people are saying about you on blogs, don’t read them. This action could be seen as a move to stop people who disagree with you saying so. One wonders what the chilling effects will be if successful and even if not successful many bloggers may not want to deal with crap like this and thus will not comment on matters of interest just to make sure they avoid such actions.

  • On the other hand, if they win their case against Slater and Graham it would send a pretty strong message that you can’t just smear and defame people on blogs and could lead to standards on blogs and their comment forums improving which could be a good thing for the fledgling new media scene, particularly as the mainstream media mega-merger to stay alive.

  • Of the two outcomes I would be willing to beat that the chilling effect would dominate. Saying nothing mean you can’t be sued, for sure, saying something, at whatever standard, could landed you in court. Which is saver?

    • And your evidence to support your contention of an imminent avalanche of legal action by the miffed is…? Bear in mind, it is likely more expensive to bring such an action than you could ever expect to recover from it.

      Defamation is not an “at any standard” situation btw – there are clear (legally) definitions of what may or may not be defamatory. Which is why, as well as cost, it is so rarely taken up as a course of action.

  • It’s perfectly possible to get one’s point across without the need for derogatory, abusive, or defamatory comments about others. Adds to rather than detracts from the strength of one’s argument as well.

  • @alison I agree. For the integrity of the blogosphere and promising new media outlets like The Spinoff, there needs to be the occasional reminder that the law does apply to them and there isn’t some double standard between the mainstream media and new media outlets.

  • @Paul absolutely, people should have recourse to the law if they have been defamed. Anyone who values their reputation, I should think, would agree with that.

  • There is a precedent for precious scientists with their nose out of joint for being robustly held to account and then suing bloggers or writers…Michael Mann is suing Mark Steyn for defamation in the US.

    Defamation is the new weapon being used to silence critics and chill debate so that only they can speak on any topic of their choosing.

    What is interesting is Swinburn and co think that they can call people the “Toxic trio” while complaining about being called troughers.

    An example of their tactics is published online http://www.ana.org.nz/sites/default/files/protectourkidsnz%20(1).pdf

    I note the cosy arrangement with media and also with Action Station and Geoff Simmons. I imagine that we will need to explore these relationships and with Tony Falkenstein in the discovery process.

  • Here is some useful info. on defamation law in NZ: http://www.defamationupdate.co.nz/guide-to-defamation-law

    Some comments:

    (1) Note that to be defamatory, a statement must be untrue, but it is unclear to me how one would counter a defamation claim by “proof” that the statement is true. What standard of “proof” is required? Possibly not “beyond reasonable doubt” as in a criminal trial. What if there is some evidence to suggest that the statement is true? Who decides?

    (2) “Further, as a result of a High Court judgment in 2015, there is now a developing fourth element a plaintiff must also satisfy: that the publication has met a “minimum threshold of seriousness” – i.e. can be regarded to have caused a serious degree of harm to the plaintiff’s reputation”.

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