Updated: One of the final public battles over the Nicky Hager book Dirty Politics - a defamation trial over the defunct Whaleoil blog site - was over within hours of its High Court opening today. Tim Murphy reports.
A long-running defamation case against PR man Carrick Graham, which stemmed from revelations in the Dirty Politics book of paid hit jobs on the Whaleoil site attacking medical researchers, has now settled out of court with a detailed apology.
The lawsuit by academics Boyd Swinburn, Doug Sellman and Shane Bradbrook against Graham and the former Whaleoil blogger Cameron Slater began in the High Court at Auckland on Wednesday morning. The court heard former National MP Katherine Rich and her Food and Grocery Council, who had previously been among those sued, had already reached a confidential settlement of the case against them - and Slater had now "consented to judgment" of the Court, effectively abandoning his defence.
While he was sought as a witness for this week's case, he had not been in Auckland and had not been served with a subpoena, after "colourful communications around service".
Graham, son of former justice minister Sir Douglas Graham, was the last man standing and heard the plaintiffs' lawyer Davey Salmon outline to Justice Tracey Walker how he, Graham, had received payment from the Food and Grocery Council to write attack posts against the three academics and their work and then paid the Whaleoil site $300 a time to publish them.
After a break in proceedings, Salmon announced a settlement had been reached and Graham's lawyer Chris Patterson read an apology from the PR man to the three academics.
It said he had agreed to make a payment to them and apologised "sincerely and unreservedly" for the hurt and harm caused by "untrue, unfair, offensive, insulting and defamatory" claims about them. He acknowledged their public health work was undertaken "responsibly and in the public interest." Graham admitted he had "encouraged, inspired and contributed to" the blog posts and said he had done so "as part of his business and in order to advance the interests of industry."
While Graham had agreed to settle, the fate of the case against the absent Slater is yet to be determined. Salmon asked to make submissions to Justice Walker for a telephone conference on Friday to sort that remaining leg of the case.
In a statement released after the settlement, the three academics said they were relieved the long running case was over.
“It’s a good feeling to have it acknowledged we were actually defamed, and then apologised to for it,” said Bradbrook. “To be accused of being a fraudster and associated with terrorism, as I was by the dirty PR campaign orchestrated by Graham, at a time that he was working for big tobacco, and published by Cameron Slater, was a terrible burden on me and my whānau for too many years. It’s a great feeling to have a burden like that off your back”.
Sellman said the three hoped their victory would benefit all academics pushing for better public health outcomes.
“The exposure of these dirty PR tactics clears the way for all our colleagues who are advocating for strong public health policies to do so without fear of being abused and defamed in the media.
“We didn’t fight this historic case all these years just for ourselves – there are bigger principles at stake here,” said Sellman
Swinburn said, “We now know for sure that the dirty tactics employed overseas by the tobacco, alcohol and processed food industries, happen in New Zealand. These industries have successfully stalled public health policies for far too long in this country because they have deep pockets, powerful lobbying influence over government and very few scruples. I hope that uncovering these connections between big money, underhand PR and defamatory blogs is a wake-up call and we can begin to see better public health policies from Government.”
The case has been four years in the making, having been triggered by the Dirty Politics book, based on a hack of Whaleoil and Slater's IT systems and its revelations about Graham's involvement writing the posts and comments.
Previous attempts to settle the matter out of court had failed and earlier in the day, Salmon said the conduct of the defence, both publicly and in the proceedings, had exacerbated damage to the three academics' reputations.
There had been "decreasing concentric circles of denial" from Graham as the case wore on, from originally denying he authored the posts.
At the heart of the case are claims in the disputed posts that Swinburn, Sellman and Bradbrook had been "troughers" who used public monies not just for public health reasons, and who sought out "junkets". In earlier hearings, Justice Matthew Palmer declared the term "troughers" to be pejorative, rejecting the defendants' claims the word was neutral or harmless.
Salmon said Graham's PR firm, Facilitate Communications Ltd, had received $365,619 from the Food and Grocery Council between November 2009 and July 2016. In turn, the Whaleoil site had received $124,000 from Facilitate between October 2012 and 2016.
With the council having reached a settlement with the academics (which Katherine Rich was keen to keep confidential, Salmon told Justice Walker), and Slater's Whaleoil business in liquidation and therefore likely to be an "empty damages award", it was Graham who had faced paying out if found to have defamed the trio.
His separate work for British American Tobacco, which Salmon alleges targeted the anti smoking researcher Bradbrook, was also discussed at the hearing and the court heard BAT and Graham declined to provide Facilitate's invoices under the court discovery process because they deemed them "irrelevant". That point was due to be ruled on by Justice Walker this afternoon, with the possibility that a lawyer for BAT would join the court via video.
Salmon suggested the posts written by Graham anonymously on Whaleoil about tobacco matters, and attacking Bradbrook, had been at times racist, crass and even saw Graham arguing with himself via different commenter identities - including Naylor, Lion King, DLM and Hayley Green - in provocative and defamatory discussions.
After the morning adjournment, lawyers had told Justice Walker "productive" discussions had taken place between the parties after Salmon's opening statement and there was a chance now of "potential resolution". They asked for two hours to negotiate before the afternoon session.
Salmon had told the court the academics had suffered damage to their reputations, including with potential funders, academic publishers and conferences in the seven years since the publications occurred.
Witnesses for the hearing were to include New Zealand Herald data journalist Keith Ng, who Salmon said had saved a copy of the 'Rawshark' documents from the hacked Whaleoil business and an IT consultant.
