Slappdash

This was sparked by a thoughtful comment from a reader which I’ll respond to with thanks.

If there’s anyone who deserves to be pissed off, it’s Dr Sanjana Hattotuwa of Otago University. Despite that, his response to me was thoughtful, gracious and lengthy – me, a complete random who’d emailed him out of the blue. He would’ve been forgiven for a suspicion of complete randoms after what he’s been through. He answered anyway.

Dr Hattotuwa has an interesting CV. His PhD studied social media in the wake of the Christchurch terror attacks. He worked for the Disinformation Project, a research group that looked into conspiracies until it was wound up. He’s a frequent and principled commentator on racism and all sorts of hate speech. His inbox must be a hellhole he’s sometimes scared to open, but after what Jim Grenon put him through, even that hellhole must seem like a walk in the park.  

I came across Dr Hattotuwa’s ordeal while researching the Free Speech Union – ironically, since the FSU were absolutely silent on his plight. To summarise what happened: Jim Grenon is a billionaire director of the media company NZME. He bankrolled Julian Batchelor of Stop Co-Governance to sue Dr Hattotuwa for defamation, after the academic appeared on a news item commenting on Batchelor’s “racist rhetoric” that “instigated harm offline”.

By the time the judge declared the lawsuit “wholly unsuccessful” and ordered Grenon to pay costs, Dr Hattotuwa had forfeited two years of his life, as well as enduring God knows what stress and expense. It’s hard to imagine that a guy with pockets as deep as Grenon’s cared much about the costs order. The cruelty, as they say, was the point.

Dr Hattotuwa’s nightmare was an example of something known as a SLAPP, short for “Strategic Lawsuits Against Public Participation”. Kiwi lawyer Lucille Reese says it best when she describes the SLAPP this way:

The typical SLAPP will involve the retaliatory use of litigation by powerful individuals or corporations against weaker opponents with the intent of stemming the source of negative publicity. Commonly, SLAPPs will target journalists, environmentalists, and academics. 

The SLAPP plaintiff will often intend to burden the defendant to the extent that they, and others who share their views, abandon their opposition and are deterred from voicing criticism in future. …

… SLAPPs can undermine the integrity of the justice system, waste valuable judicial resources and constrain the fluid operation of the marketplace of ideas. 

Reese poses the question: is it time Aotearoa started talking about, or making rules against, SLAPPs? It’s an important issue, and I’ll take it on another day.

Right now, Martyn “Bomber” Bradbury is at the centre of a news story of his own making. It’s hard to figure out what’s going on, but someone’s taken him to court under the Harmful Digital Communication Act (HDCA) 2015. He’s removed four blog posts about this person for now, but he’s belligerent, representing himself in court and promising he won’t comply, even if it lands him in jail.

A few prominent online commenters have come out in support of Bradbury, despite knowing no more than you or I. That’s partly because he’s left wing – or so some say. To be honest, I haven’t seen much from him that rose above the level of bluster. But more than his politics, people are backing Bradbury for fear of a precedent. If the SLAPP people can come for Bradbury they can come for any of us, the commenters believe. That includes a writer like me. The implication is that I owe Bradbury my support.

Do I worry about facing a SLAPP? I’d be lying if I said I don’t – all writers worry. I work very hard to make sure my posts are rigorously factual, but in this game, facts don’t matter. The SLAPP is punitive and often without merit. Whether it wins or loses in court hardly matters.

But does that mean I should throw my lot in with Bomber? Is he only fighting for the rights of others, as he insists?

Yes, it’s possible the complainant against Bradbury is an attempt at a SLAPP. But that’s not Bradbury’s primary problem. The court has made an interim order preventing him publishing the complainant’s identity, with the judge urging him to reflect and take legal advice before he reappears. It’s a much bigger ask for me to believe the justice system is out to get Bradbury – especially when the HDCA allows for rubbish complaints to be thrown out before they even make it to court. I’d need a lot more faith in Bradbury’s behaviour and judgement to automatically take his side.

It's been suggested by commentators that because the media are covering aspects of Bradbury’s story, they must have some inside word that the case against him has no substance. This is a misreading that risks veering towards conspiracy. The media are reporting aspects they believe aren’t prohibited by the court order. This might seem pedantic, but it matters – the media are obeying the court and making no judgement whatsoever on the merits of Bradbury’s cause.

Meanwhile, although I’m a free speech proponent, I believe in legislation like the HDCA, even if it’s not perfect. I’m a woman writer, so I get harassed, and I’ve turned to the court for help. When people flout orders under the HDCA, undermining one of very few protections against harassers, it’s women, Māori, other people of colour and rainbow folks who stand to be harmed the most.

Of course, Bradbury might rail against comments like that last: as he likes to remind people, he’s a real man type of leftie worried about real man issues, not woke identity politics. Perhaps he’s now surprised that his support from the left has been a little muted. Those allies he never cared to make aren’t rushing to his aid.

I never asked Bradbury to be some kind of standard bearer for me. The day might yet come when I open my inbox to a SLAPP. If it does, my response will be careful. I will pick up the phone to people who know and respect the law. I will look to the wisdom of experience, maybe from someone like Dr Hattotuwa. I’d very likely seek moral and practical support from my readers. If I wrote about it, I’d try to do it with care and nuance – or so I hope. It’s hard to know how exactly you’ll react to a situation until you’re in it.  

What I wouldn’t do is stand before a court, defying the very institution I’ve asked for protection, alone with my bluster.