A judge in the ‘Dirty Politics’ defamation case orders a PR firm to turn over invoices to clients in industries like tobacco and alcohol
Three health researchers who allege defamation by the Whaleoil website and a PR man over Dirty Politics-related posts questioning their work have had another victory at court.
The High Court has agreed with Douglas Sellman, Boyd Swinburn and Shane Bradbrook that PR man Carrick Graham must turn over to them invoices for his work for clients in industries like tobacco and alcohol, as well as those he had already ‘discovered’ under the court process.
The academics’ lawyer Davey Salmon had argued they needed to know if any of Graham’s clients other than the Food and Grocery Council, which they are also suing alongside its chief executive Katherine Rich, could have paid for the posts attacking them on the Whaleoil blog.
Their defamation action is against Graham, Whaleoil blogger Cameron Slater, Rich and the council and alleges Graham wrote or procured some of the articles on behalf of his client, the council, and then paid Slater to publish.
Slater claims any payments were for general advice to Graham and all defendants deny that the council was behind the critical articles. Graham told the High Court in July he had written the posts in his own time because he was personally interested in ensuring there was balance in debates about public health policies. (Graham previously worked for British American Tobacco).
In evidence, Slater told the court he and Graham broadly agreed on the issue of public funding for academics taking political positions. “People in receipt of public monies – in the vernacular, we call them ‘troughers’ – should be accountable for the status of the money. Professor Swinburn has in the past 10 years received in excess of $10m of public money and is constantly in the media framing the political debate.”
Salmon told Justice Matthew Palmer that when the case goes to trial, the plaintiffs would argue the claim that payments to Slater were not for the blog posts “is a fiction”.
Sellman, Swinburn and Bradbrook began the defamation action after the background to the blog posts was detailed in Nicky Hager’s 2014 book Dirty Politics.
Their bid for more extensive answers from Slater and Graham under the court discovery process had led to the duo being ordered to appear in person to answer questions.
Salmon also asked for an order from Justice Palmer that the other invoices from Graham’s PR firm, Facilitate Communications, should be turned over.
The judge’s ruling said: “A question arose as to whether Mr Graham is required to discover invoices which he does not consider relevant to the issues at trial but which the plaintiffs do consider relevant. The invoices were sent by him and/or FCL to other clients in the food, alcohol or sugar industries. Mr Graham and FCL discovered the invoices they sent to Mrs Rich and FGC but not those they sent to other clients.”
Salmon had argued that if it was true the Whaleoil posts had been paid for, that would be relevant to the defendants’ defamation defence that such posts had been their own honestly held opinions.
Salmon said the fact of who was paying for defamatory statements was also relevant to the defence of honest opinion. “For example, it might make a difference if it were big tobacco companies rather than an independent bystander,” he is quoted as saying in Palmer’s decision.
Graham’s lawyer, Ed Grove, said the discovery sought was for some unspecified period, would require searching through invoices to all clients and would include a wide amount of irrelevant material. Only relevant documents should be caught by discovery.
Grove also complained to Justice Palmer that Sellman, Swinburn and Bradbrook’s reliance on material obtained from the Rawshark hacker, who was central to the Dirty Politics book, did not inspire confidence the academics would not breach confidentiality under the court process.
The judge ruled: “These documents should already have been discovered. They are likely to be relevant, for the reasons Mr Salmon gives. They may be important to the case, though they may prove not to be. Mr Graham appears to acknowledge they may exist. I cannot see any basis to suggest discovery would be disproportionate. I order the discovery sought.
“As usual, the information disclosed as a result may only be used by the plaintiffs for the purposes of this proceeding, not any wider or other purpose. I expect their counsel to explain that clearly to the plaintiffs. I am confident the plaintiffs will abide by that.”
Graham and his firm did have one success. They had also sought more extensive discovery of material from the three academics – including all details of funding they had received since 2000 and all records of financial statements, audits or investigations into use of those funds, all articles or papers written by Doug Sellman since 2000 and details of any disciplinary records, complaints or criminal records relating to Shane Bradbrook and government funding since 2000.
Grove said these documents were all needed to assist Graham in his defence of truth to the defamations alleged by the three academics.
The judge accepted an offer from the trio to provide more limited information specifically related to the alleged defamatory statements at issue.
But he did require Bradbrook to supply further information to Graham. “I order Mr Bradbrook to discover information relevant to any disciplinary process and/or investigations by or on behalf of the Ministry of Health into Te Reo Mārama in which he had a role. Mr Graham and FCL did provide particulars regarding that and the response that they involved Te Reo Mārama rather than Mr Bradbrook is not sufficient.”
Sellman is a Professor at the University of Otago and director of the national addiction centre. Swinburn is Professor of Population, Nutrition and Global Health at the University of Auckland and Bradbrook is a long-time advocate for smokefree Māori communities.