Once again, tweets by a public figure are under examination in the courts – this time some fighting talk on Twitter from the publisher of business website NBR, Todd Scott, during a legal standoff with former National finance minister Steven Joyce.
Scott finds himself personally sued, as well as facing court action against his company Fourth Estate Holdings Ltd, as publisher of the NBR, which ran a column by former writer Matthew Hooton that disparaged Joyce after he failed to win the National Party leadership early in 2018.
Hooton retracted his claims and apologised, paying $5000 in costs to Joyce in April that year, but between April and June his former publisher Scott criticised that settlement on Twitter and vowed to continue to resist Joyce’s demand for an apology.
Joyce offered to narrow his demand for a correction and apology to just two disputed sections of the column but NBR did not respond.
The two parts involved Hooton’s claim Joyce had used his position to advance the interest of friends he had at the telecommunications company Chorus, he had used his successor as communications minister, Amy Adams, as a proxy to advance his personal agenda, and had indulged in political blackmail.
The issue went to a judicial conference, with the court accepting it was possible for defamatory meanings to be drawn from the column and that a reasonable reader of Scott’s tweets could also take such meanings. The court recommended a correction should be published but Scott’s company declined to do so.
It was then that the former National MP decided to sue Scott as well for the tweets he had posted. One tweet, aimed at Joyce’s lawyers, said Hooton “might have lost his nerve… I will fight for his right even if he won’t”. Another referred to Scott in the third person and said of the column “It’s not defamatory.” And a third said Hooton had “cut a deal” in an attempt by the politician to get at the alleged “five sources” for the column’s claims. “I was expected to roll over. I won’t.”
When the case reached the High Court at Auckland yesterday, Joyce’s lawyer Zane Kennedy asked Justice Pheroze Jagose if he was familiar with Twitter. “Regrettably, I am,” the judge said.
Kennedy argued the three tweets could be taken by a reasonable reader to be Scott repeating the original defamation to a Twitter following that now numbers 1600. “They serve as a re-publication and personal affirmation and endorsement of the contents of the article and ultimately the defamatory passages, to anyone who would have read it. He is constantly reiterating that the sources are … reliable.”
Joyce called former National campaign worker and political adviser Hamish Price, who had read Scott’s tweets, commented directly on them on Twitter at the time and engaged in private direct messaging with Scott over the issue. Kennedy said Price was a late addition to the plaintiff’s case because Scott had not provided the direct messages under discovery in the build-up to the hearing.
Scott’s lawyer Phil Ahern objected to Price being called and – on a technicality over Price’s brief of evidence – persuaded the judge to stop Price providing evidence on his understanding of what Scott’s tweets meant in relation to the Hooton column.
Ahern said the late introduction of Price’s views on what Scott intended by his tweets would be prejudicial to Scott’s defence.
So Price came and went, basically providing the direct messages into the court record and confirming he had seen Scott’s tweets and engaged with him on them.
If the judge finds the column defamatory of Joyce, and that the tweets subsequently also defamed him by underpinning the veracity of the column, then Scott and NBR would face Joyce’s request to the court to order a retraction and apology and for them to pay Joyce’s legal bills. Joyce has not sought financial damages.
The former minister, who now runs Joyce Advisory Ltd, consulting “to governments, company boards and chief executives” gave evidence but Scott did not, and neither he nor NBR called any witnesses.
Joyce said he learned of the Hooton column on Thursday, March 1 when NBR’s political editor Brent Edwards sought his comment, telling him Hooton had “gone completely troppo, or words to that effect” in a column about Joyce which was about to be published. Joyce warned Edwards that “if the article is really that bad then NBR should not publish it.”
He called Scott and was told that he, Scott, “was also concerned and would send me screenshots of it which I could read for myself”. After looking at them, Joyce rang back but this time was told it was too late, the paper edition of NBR was already being printed with the column – Hooton’s ‘Weekly Hit’ – inside it.
“We discussed whether the article would also be published online and in doing so would make matters worse, “Joyce said. The next day the column, headed “Joyce sacking first test of Bridges’ leadership” appeared both in print and online. Joyce complained to Scott who replied by text: “Sorry mate. I’ve put myself in your shoes and it’s not pretty.”
Scott reiterated an offer for a right of reply but the MP regarded that as inadequate. “I used to work in media and we used to call it the ‘have you stopped beating your partner’ defence.
“Someone would say something outrageous and you could respond by trying to defend yourself but the sting would still be there.”
Joyce denied he had friends at Chorus, had ever used Amy Adams or anyone else as a proxy or that he had ever blackmailed anyone in politics to get his way.
He also took issue with two other claims in the column that NBR says Hooton was right about: that Joyce won five or fewer votes in the party leadership race, that he forced himself onto the party negotiating team with New Zealand First after the election and that he had been wildly wrong about an $11.7 billion hole in Labour’s financial projections ahead of the 2017 election.
Joyce said the result of the leadership ballot was confidential and he, Joyce, did not even know how many votes he had won. He had been invited onto the post-election coalition negotiating team by former National leader Bill English, and he stood by his calculations over the $11.7 billion fiscal hole.
Kennedy asked who had helped him calculate the numbers, and he said an economist from the Prime Minister’s office, a policy adviser in his own office and a former economic adviser to John Key, who had by then been working for the International Monetary Fund in the United States.
“There was significant cross-checking and work on that particular statement,” Joyce said.
Asked if the fiscal hole was fake, as the Hooton/NBR column claimed, he said: “The concern I had was…. that the projections of expenditure were significantly lighter than they should have been.
“I think subsequent events have shown they were considerably lighter than would be accepted by the Labour Party at the time.”
Ahern, for NBR and Scott, focused his cross-examination of Joyce on his actions in calling the press conference over the fiscal hole – and on how he could say the column’s claim Joyce won five or fewer votes was intentionally wrong if he also claimed no one knew the precise outcome.
He did not call evidence for the defence, so Scott did not get to explain or defend his tweets.
Ahern tried to persuade the judge that Kennedy should make his closing submissions first, but after technical argument on court rules, he was denied and will present NBR and Scott’s closing argument before Kennedy, from Tuesday morning. The rapid progress on the High Court case will give NBR a brief breather before its next court case.
Ahern and Scott are scheduled in the Auckland District Court on Thursday in a defamation case NBR has brought against Newsroom over publication of an agency story from BusinessDesk, which quoted from a letter Joyce’s lawyers had sent NBR on the column at issue in the above High Court case. Newsroom is seeking to have the case struck out.
